Bar Exam Challenges to Discrimination (Folder) (Redacted)

    REORGANIZATION OF SOUTHERN STATE SYSTEMS oIf h i g h e r  BDtCATION Bar Exainination - challenges to 
.Discrimination

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Fr ank, B e r n s t e i n , C onaw ay & G o ld m an

O MERCANTILE BANK & TRUST B 

2 HOPKINS PLAZA 

BALTIMORE, MARYLAND 2K

August 30, 1973

H o n . Parren J. Mitchell 
1018 Federal Office Building 
31 Hopkins Plaza 
Baltimore, Maryland 21201
Dear Parren: |

R E C E I V E D

PARREN J. MITCHEU, M.C. 
Zft DlSTRiCT, MARYUANP

Following our conversation two weeks ago when I was 
having lunch with Milton and Ben, I talked with Vice Dean William 
Bruce at the Harvard Law School and also with Dean Clinton Bam- 
burger of the Catholic University Law School about the problems 
being encountered at the University of Maryland Law School in 
connection with the failure of a higher proportion of minority 
students than other students at the University of Maryland Law 
School. I tried to reach you by phone to discuss what I learned, 
and I was reminded that wa had not spoken when I saw a newspaper 
article in Thursday morning's Sun.

There are a number of things which might be tried to cor­
rect the situation, although no doubt it will be extremely difficult 
to improve the situation without at the same time, offending some of 
the minority students who are involved. I am sure that either Clint 
or Bill Bruce would be happy to talk with you. As no doubt you are 
aware, the problem would be substantially different at Harvard than 
it is at Maryland.

Give me a call if you wish,to discuss this further.
Sincerely,

M.'Peter Moser

M PM /bb







I'i







"Va c

David E. Sloan

IH E  SUN, Sunday, September 16, 1973

Toil to Uplift Minorities
Is Too Easily Written Off

In general, American institutions are 
beginning to recognize that genuine con­
tributions' to the whole of American 
society are made when minority citizens 
exercise leadership primarily in efforts 
, to enhance the status of minorities.

• Unfortunately, however, some institu­
tional leaders still regard contributions

 ̂ in the areas of civil rights and equal 
opportunity as outside the realm of

■ legitimate accomplishment on behalf of 
all of us.

•This attitude is illustrated by the 
difficulties of Howard P. Rawlings, who 
was terminated August 9 as an instruc­
tor of mathematics at the University of 
Maryland Baltimore County campus 
After Mr. Rawlings bristled and other 
black leaders such as Representative

• Parren J. Mitchell (-D., 7th) and Judge 
Joseph C. Howard registered dismayed 
concern, the university retreated from 
its decision and notified Mr. Rawlings 
August 30, that his contract was being 
extended for the academic year 1973- 
1974.'

The face-saving excuse given by the 
university was that a procedural rule 
had not been followed in the termination. 
However, the net effect is to leave Mr. 
Rawlings, a civil-rights and equal-oppor­
tunity activist par excellence, dangling, 
expecting the employment ax to fall at 
the end of this academic year.

Who is Howard P. Rawlings and why 
use precious newsprint to call attention 

•to his situation? In the language o f , 
Richard C. Roberts, 'chairman of the 
Division of Mathematics at UMBC and 
Mr. Rawlings’s immediate supervisor, 
he is one who “since coming to the 
campus has become increasingly in-, 
volved in activities affecting both the 
[UMBC] campus and the UMES [Uni- 

.versity of Maryland Eastern Shore!,
■ College Park and Baltimore campuses.
 ̂ Beginning in the summer of 1969 he

became involved with the efforts of the 
'■ Education Division to establish a 
: Teacher Corps Program at UTvIBC in' 

co-operation with the Baltimore city 
public schools.

“Serving as the joint chairman of the
• UMBC Black Caucus of Faculty and 
" Staff and as spokesman for a university

wide organization of black faculty, staff 
and students, he became involved with 
efforts to re-examine the admission cri­
teria which were being adopted by the 
Board of Regents of the university. He 
led a statewide effort involving labor, 
political organizations, and other groups 
to change Maryland’s antiquated and 

' discriminatory scholarship program.
• “It cannot be denied that Mr. Rawl­
ings has done considerable .service to

the university, but almost all of this was , 
outside of the Mathematics Division . . .
I would say that the recruitment of a 
chairman of the Afro-American studies . 
program; the present entrance require­
ments which are now being used at 
College Park and UMBC; the unprece­

dented commitment made by the Board 
of Regents to the black community of • 
Maryland to improve accessibility of 
minority group students to the profes-' 
sional schools, and the recruiting of a 
Chancellor at UMES owe their success 
in no small measure to his efforts.”

Despite all these acknowledged 
achievements, the university wants to 
terminate Mr. Rawlings because, they 
say, he has not fulfified the require­
ments for a doctoral degree which he 
promised to complete when he took the. . 
job. They say he has since “changed his . 
priorities” and would prefer to become 
an administrator. And even though the 
university recognizes his administrative- 
skill, and claimed to be considering him 

. for the new position of affimative action 
officer, it managed to renege on that 
also and hired someone else from out­

side the state.
All this leads Mr. Rawlings and his- 

friends, with good cause, to ask them­
selves if the university and those who 
govern it really appreciate the many 
things Mr. Rawlings has done for the 
school and the state. If his efforts had 
been as creative in contributing to the 
majority group within the university, 
they ask, would he not now be touted as ' 
a rising star of higher education, sup- - 
ported for a'vice chancellorship or vice 
presidency? They wonder if the univar- 
_sity and the state know that Mr. R aw l-' 
ings _ has _ done an inestimable service, 
not just in the narrow confines of the 
Mathematics Division, but across the 
whole spectrum of higher education in 
Maryland.

iPresident Johnson’s administration 
was able to recognize the contribution of 
Justice Thurgood Marshall, even though 

. as a lawyer most of his services were in ' 
behalf of minorities through the NAACP. 
Blacks .themselves saw to it that the ' 
Supreme Bench of Baltimore recognized 
the unpopular services of Judge Joseph 
C. Howard as he pointed out to the  ̂
administrators of criminal justice the 
inequalities in the use of the death ' 
penalty as it affected black defendants.

Similarly, if the establishment will not 
voluntarily recognize Mr. Rawlings’s 
contributions, blacks ought to rally 
around and make it clear that they 
expect him to be utilized in a position ol 
honor and in a way befitting his training 
and talent. *



Sepfc®«bar 12, 1973

Cm^mmsm&n P a * * «  MitiSiel,!.
4 M  Caai5«» HBB«® Oiiiee 
iM iia fto n , S.C,

B a s r  M ifcrtta ll*

J«a«i» Sttsrife, I I I ,  asseelafe* C m m m l & t m r ,  m .  m tlrn r  Bmmamam, 
4 im e tm r o£ i s f 's  garl m x w m  t ^ m l  gr©gra» aatf i  plan
to Btt.«sa the yew fcav# acSieiulstf t m  iii«t  Iteartay,
S^fewAwe W , lt?3, 4» «S8 m M im  SaiM iag ia  a a l fe l »® ,
Iteylairf, « t  7iQ0 p,a.

m  plan tm mmlvm ©a #MS i * id »  leavas I«@siw«ia
airport; m  4|4® p ,« .  Ja € ««  t© m xvlm  a t  friowSsliip airs^fe  
afe Si32 p .s . » «  te«» w i l l  atay ovewii®ht a » «  a r «  asifciat h©t«l 
saserm tlsn*. i  w i l l  rsfewsa fc© ^  im m  i »  »h lla d e l^ i» *

X » f M t  t i »  tb® » e t i » g  en S«ffe«**
h m  19. I  have r® ^ »o k «i »y  notes o* owr e©avers«ti<wi laMes
m  »® fe»«aee t© » »y  « i# « a « io a  o f «  Metla® ®a ttj« 10th. SIb m  X 
liad aiwthe*- engag^M t that ewMilut ^ 4 *  «y  ^es«a©e In
tM l^ e lp M a . I  m  mme that l  coaW aofe krnm premimmS to  tsm im 
iSeltlaiwa.

m  lesJi f ^ » « a  to t t ls  m eetly with p «*o iw  lAo are «aee rn «d  aiKmfc 
the MfceatiM p^sbl«ms Mama by blaefc gtM««»ts at ttw Oalveraity o f  
m iylaad I « m S e S ^ l. Pleas® be aasared o f «wsr <3«ep fxmnsmm.

S ia c o r e ly ,

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bees * j .  sabrit
*B«tler Henderson

Js*» m is fa * , oirector 
Blvlsioa o f Ziegal lafoaafelon  

•nd C ««im lty  Servie*

a single rocw reservation has been made for you at the Downtown 
Sheraton Hotel, Orlean and Broadway, Baltimore.



FOR RELEASE WEDNESDAY SEPTEMBER 12, 1973
FROM:
THE BLACK AMERICAN LAW STUDENT ASSOCIATION 
UNIVERSITY OF MARYLAND BALTIMORE CITY 
CHAPTER
FOR FURTHER INFORMATION CONTACT: MICHAEL RAMSEY

TELEPHONE: 301-828-9931

The Black American Law Students Association (BALSA) 

announced its strong concerns about the Maryland State 
Bar Association's announcement of a special committee to 
Investigate the institutionalized racism at the University 

of Maryland Law School.
BALSA 1.S especially concerned that the Bar Association's 

special committee effort may only result in a superficial 
examination of the situation and, either wittingly or 
unwittingly, serve as a "whitewash" for the school.

We are more than happy to have the matter brought to 

public attention and we welcome full inquiry by as many and 
as varied bodies as possible to eliminate this problem which 

has a direct impact on the continued growth of the Black 
Community. However, unless the Bar Association is willing 

to commit the time, money and effort: to (1) insure the 

objectivity of the special committee by selecting persons 
to serve who have a public profile of objectivity in this 

area of concern;,and (2) eliminate the problem of insitu— 
tionallzed racism of the University of Maryland School of 
Lav;, the Bar Association's effort will be viewed as suspect.



Additionally, we must grapple with the problem of Blacks 
graduated from Law Schools across the country who are further 

prevented from the practice of law through bar examinations 
(such as Maryland State Bar Examinations). These can be 

proven to have no correlation with one's ability to 
effectively practice the law. This area of inquiry may even 

prove to be an equally valid area of scrutiny by the Bar 
Association.'

Statistics which show one (1) white attorney for every 
176 white persons as opposed to only one (1) black attorney 
to every 10,000 plus black persons in Baltimore City strongly 

suggest some sort of systematic elimination of Blacks from 
the law profession.

September 12, 1973



Black ftaerican law Students

Septe»bor 14, 1973

Francis 0, Monahan. Esnufre

TUisr Hr. ftonshan;

?/'• »<''> ufiftTf V'!* f-!.'li’i a- of M.r c«?c1a1 coraittei?
reeersi.lv e ' Os •; , t s ‘ *• t*" .'as 4. ,fif fgtifari
to is'!./''S»'4'7 it* i ' I 1 ru (' ,J i. , s " 1 1 *1 f C.r'esa «'t
the iJBiversiiv n>’ Uoi i.i. he<,, (‘f

Vsf Clerf- Alfir •... fi ? ’*>’ '> ''xxf', A''XCi 4't n'>
fuels it Ksj-isu t) h. * si ! /I <"0 il'/’r ’ Ir hi i <̂ ri itf 
owr psidilof f/! the after t, ituiier nilf, si
the Lsw School,

?fls w* vsfw Iht) liini-tif, !.h,, cerreiit trisio has its 
'li'i’i In thr hitc.r'- ri 11 •serl'-’lr .s tor’' {orrotice' a<'f'u, t 

by fh»» hr.iy7.ro!tv. ' 1  i’Sirsfr-. di'srrlivlnatSon io !,,»■-< ii(s- 
!' iOl, ’•xl'jtsnf O0l f'j/t !,’ •j)(*£’S ie<m) theta,'ts<- ' 7
f*r MiSstle c f s f ‘ of .ilterl'1-ator.y prat cl csss agr 
i loci'*.

The tests used wh- 
icks from the Law Sen' 
it Inherently dlscrim'
#s bessrt proven to he • 
3res 8r'S then »js®d ’ay 
asHc'tsr to alibi its 

pro or an. Of Cfjo 
it these tests scores 
icks, Mltlioat suppor 
j tintenabis.

,lvii l.y serooB oliosliisi,'*
y ’ ( . ' / s t . p ' U x  o f

it- ihr-t Blacks,. 7hf»»e toof.s 
; i.V'.ed. Tlio r- nl la./' 
f'^tratlon as r . - r a > y  

I'l t . i  . l i o f ' l f  a  y i i i k i t  .  ?■* (■ *.* ■'
8'' .11 fC„11V t*! ry soar ' ' h 

•ct if.-arior s/orl or A h d ' f  
il.tca, s*'ch ‘..i'ojo



We are suqqesti no that an 1 rives ti oa ti on of this 
riroblem at the Law School must be conducted with an eye 
towards the adverse ininact of existing nolicies and 
practices. The announced reason and intent of those 
policies, notvri thstand inp . He fervently hone your cormaitte 
will approach the problevri from this perspective.

Please advise our association of how the special com­
mittee intends to 'tonduct Its Investlpatlon. We'can then 
determine’wHat, If any our involvemept 'will be.

Sincerely,

Edward Smith 
President

P r 0,3 f
;1 C. Ramse; 
:t D'irector

ES/MCR/SC/B



SURVEY OF UNIVERSITY OF HARYLAND FIRST YEAR 

BLACK LAW- SCHOOL STUDENTS ACADEHICALLY TERMINATED

PRIMARY QUESTIONS;

1. Are they first year students?

2. Have they petitioned for readmission?

3. Under what conditions was readmission granted?

4. Do they have desires of readmission?



 



7. 



C o u g r e ^ ^  oC tl)z f i n i t e i )
at i^epi-esientatiiieiS

aasfjiitalon, 3S.C. 20515

S e p te m b e r  6 ,  1973

D r .  A lb in  O . Kuhn ' ■
C h a n c e llo r
O ff ic e  o f th e  C h a n c e llo r
U n iv e rs i ty  o f M a ry la n d  ‘ .
525 W e s t  R edw ood S t r e e t
B a l t im o r e ,  M a ry la n d  21201 <

D e a r  D r .  Kuhn:

T h a n k  y ou  f o r  y o u r  l e t t e r  d a te d  A u g u s t 3 0 , 1973 . 
U n fo r tu n a te ly ,  I c a n n o t  d e te r m in e  th e  e x a c t  s ta t u s  o f th e  s tu d e n ts  
f o r  w h ic h  w e  h ad  c o n c e r n s .

If y ou  w il l  r e c a l l ,  a t  o u r  W e d n esd a y  m e e tin g  I r e q u e s te d ,  
on b e h a lf  o f  th e  g ro u p  a s s e m b le d ,  th a t  w e  be  p ro v id e d  w ith  th e  
fo llo w in g  in fo rm a t io n :

(a )  T h e  n a m e s  o f th e  f i r s t  y e a r  Law  S c h o o l s tu d e n ts  '■ 
w ho h ad  b e e n  d ro p p e d  f ro m  th e  Law  S c h o o l ,  and

' th e  a v e ra g e  g r a d e  o f e a c h  o f th e m .

(b) T h e  s ta tu s  o f e a c h  o f t h e s e  f i r s t  y e a r  Law  S ch o o l 
s tu d e n ts  w ith  r e g a r d  to  r e - a d m i s s io n .  W h a t w e re  
th e  c o n d it io n s  f o r  r e - a d m is s io n  in  e a c h  in d iv id u a l 
c a s e .

(c) W h e th e r  o r  n o t th e  f i r s t  y e a r  Law  S c h o o l s tu d e n ts  
, h ad  b e e n  r e - a d m i t te d  to  th e  se c o n d  y e a r .

This s ta t io n e r y  pr in te d  on paper  made w ith  recycled  i



D r .  A lb in  O . Kuhn 
P a g e  T w o  
S e p t e m b e r s ,  1973

S in c e  y o u r  l e t t e r  d id  n o t c o v e r  t h e s e  t h r e e  a r e a s  , 
d e f in i t iv e ly ,  m y  s ta f f  i s  p o llin g  e a c h  o f  th e  1 s t  y e a r  Law  
S c h o o l s tu d e n ts  in  o r d e r  to  s e c u r e  th e  in fo rm a t io n  d e s i r e d .

I g a th e r  f ro m  y o u r  l e t t e r  th a t  y ou  h a v e  n o t a p p ro v e d  th e  
- a d m is s io n  o f  t h e s e  s tu d e n ts  to  2nd y e a r  o f  s tu d y .

I a m  s h a r in g  c o p ie s  o f  y o u r  c o r r e s p o n d e n c e  and  m y  r e p ly  
w ith  th e  c i t i z e n s  w ho m e t  w ith  y o u . A f te r  th e  c i t i z e n s  in v o lv e d  
h a v e  d e te r m in e d  th e  n e x t  s te p  in  t h e i r  e f f o r t s  on  b e h a lf  o f th e  
B la c k  s tu d e n ts  in v o lv e d  in  t h i s  s i tu a t io n ,  I s h a l l  b e  in  c o n ta c t  
w ith  y o u . V

S in c e r e ly  y o u r s .

B a r r e n  J . M itc h e ll ,  
M e m b e r  o f C o n g r e s s

P J M s e r

S k y le r  C o o p e r ,



U N I V E R S I T Y  OE M A R Y L A N D  a t  Ba l t i m o r e
525 West Redivood Street, Baltimore 21201

r e c e i v e d

^110 3 1 W A  August 30, 1973
t-MK., J .-/ilTCHCJ,. '■
7 th  DlSTKICiMAHYLAin^

The Honorable Barren J. Mitchell 
House of Representatives 
House Office Building 
Washington, D. C. 20515

Dear Congressman Mitchell

When we mat on Wednesday of this week, you asked 
that I send you information about the re-admission of 
black students to the School of Law as soon as possible 
after my review.

There were eight students who petitioned for re­
admission to the School of Law for this September. 
Following review of the petitions by the Law School 
Committee, six of these students have been re-admitted 
to the School.

Today I have inspected and studied the petitions 
for re-admission of the two students who were denied 
re-admission and I have reviewed their records in the 
School of Law. It is my conclusion that the Committee 
considered all of the facts that were presented and 
these two students have such low averages that it would 
not be wise from the standpoint of the students to fur­
ther encourage them to attempt to prepare to become 
lawyers.

Each of these students, if he wishes to make a 
further appeal, can, if he receives the approval of 
three faculty members in the School, petition for the 
faculty to consider whether he may be re-admitted. If 
the students feel strongly that they wish to continue 
their legal education, I would encourage them to con­
sider this further appeal.



The Honorable Parren J. Mitchell 
Page 2
August 30, 1973

I will be pleased to talk with you at any time 
about this matter.

AOK/ab

Very truly f o ^ s ,

L d l

Albin 0. Kuhn 
Chancellor



Qi. rit!i*isiii H i  itt
By GEORGF

A special committee of the 
Maryland Stale Bar Associa­
tion has been appointed to 
hear complaints of law school 
students, most of them black, 
who charged through one of 
their spokesmen that they 
were "deliberately flunked out 
by.; a racist in,stitiition."

-Harry M. Sachs, Jr., chair- 
mpn of the bar gi'oup’s section 
oiT legal education and admis­
sions. said the-committee "will 
serve as a neutral forum for 
the black complaining and dis­
sident students at the Law 
School of the University of 
Maryland.”

:Franci.s J. Monahan was 
named chairman of the special 
committee.

!' Charges made

■Re-admis.sion of 10 students, 
8 of them black, was de­
manded last week by several 
black clergymen and politi­
cians, including Representative 
Barren J. Mitchell (D„ 7th), 
who leveled the "racist in.stitu- 
tion” charge.

The whiles joined the eight 
blacks out of sympathy for the 
blpcks’ viewpoint in the dis- 
pUle, one of the whiles said.

■Mr. Sachs said "records 
show a higher percentage of 
blacks do fail, but the records 
also disclose that the under­
graduate averages of the black 
students is 2,8 compared to 3,5 

■ for whites based on 4 points 
foe excellent and 2 points for 
average for all students.”

The demand for re-admission 
of.the 10 students was made at 
a meeting with Albin 0 . Kuhn, 
university chancellor.

Four of the blacks and one

J. HIliTNEB
of the while .students who com ­
plained already have been re­
admitted on varying condUions 
that they repeat certain 
courses, according to William 
P. Cunningham, law school 
dean.

Mr, Sachs said the bar asso­
ciation does not interfere in 
the internal functioning of the 
law schools, but does establish 
certain minimum requirements 
as to library facilities, subjects 
taught, the number of full-tim 
instructors needed and otho 
factors, as well as requiring 
standardization of grading.

He said that the bar section 
he heads already has ex­
pressed the view that normally 
there should be no re-admis­
sion of academically deficient 
students on special conditions 
since .such action tends to 
lower law-school standards.

One fimction

Mr. Sachs also said: "The 
special committee to be ap­
pointed will have fact finding 
as its sole function. All stu­
dents complaining of improper 
grading procedures will be 
given an opportunity to be 
heard and present any abuses 
of fairness they may have.

"When correlated, the facts 
will be presented to the Board 
of Governors for any action 
that may be indicated. Be-  ̂
cause of its in camera discus­
sions of the problems, no 
member of the council on legal 
education will sit on the fact­
finding panel. .

"The various political figures 
who have shown an interest in 
the problem will also be in­
vited to present any facts 
available to them.”

'4-A Thm-s,, Sept. 6, 197.1 THE NEWS AMERICAN

Eacism si U-M Cjiar,f;€i3
: Uilil ¥ i t l i"'r

U

A special committee of the 
Maryland State Bar Associa-. 
tion has been appointed, to act 
as a “neutral forum” to heat 
evidence of complaints voiced 

! earlier by black students at 
the University of Maryland 
Law School, who charged they 
had been "deliberately flunked 
out by n racist institution.” 

Harry M. Sachs Jr., chair; 
man of the Councirof tbej.ee-.:..

• {ion on" Legal ’Ldiicati,on,_and 
'AHmissions of the7bar_a.s^ocia- 

•• Uon, announced that the .spGj- 
■ ri'a! comimittee wiil be headed, 

bv Frenci-s J.^Monahajh a Bal­
timore lawyer.

Last week eight black stu­
dents were among 10 persons • 
who sought re-admission to the 
law school at a meeting with 
university Chancellor Albin 0. 
Kuhn. Among those calling for 
reinstatement of the students 
were several black clergymen 

,.5/  i\nd politicians, including Rep- 
^  Parren J. Mitchell, {D,-7th).

' Sachs said the special com­
mittee will "have fact-finding 
as Its sole function,” and hi-_̂  
vlted any slucients complaining, 
bt improper grading pioce- 
dures and "the various politn 
cal figures whbliave -shotyn.an. 
'inferestJn the prob!em”,J..o 
present ‘‘any evidence, of 
amises"of fairness thev‘’ may 
jiavedi

Sachs said the facts obtain­
ed by tlie committee will then 
be correlated and presented to

ihr as.sociaiion’s board of gov­
ernors "for any action that 
may be indicated.”

While conceding that univer­
sity records show "a higher 
percentage of blacks do fail,” 
Sachs said the records also 
show that "the undcrgradiiatc 
averages of the black students 
i<5 2.8 compared to 3.5 for 
whites based on 4 points for 
excellent and 2 points for i 
erage for all students.” 

Chancellor Kuhn had argued 
last week that the students 
had failed, because of "poor 
academic performance,” and 
not because of tlieii* race.-He 
pointed out that black scores 
on the Law School Admission 
Test, an exam required by 
most major U.S. law schools, 
also were ".significantly low­
er” than the scores of white 
students.

The black student.? and their 
supporters counlcred by .say­
ing they felt black students 
were of the same caliber as 

■ white students, adding lhat the 
"burden was on the in.stil 

• to do its utmost” to see that
' the blacks did not fail.

William P. Cunningham, the 
law school dean, revealed later 
that six of the eight black stu­
dents had applied for re-ad- 

, mis.sion and four of Uten 
been accepted.



U N IV E llS I .T ,y  O lf  M A R Y L A N D  S C H O O L  OF  LA W 
5()0:̂ £AT~isM?CmORE STREET »  ̂ BALTIMORE, MARYLAND 21201

OFFICE OF THE DEAN W\.C- September 5, 1973 PHONE 5SS-72U

Mr. Washington Green, Jr. 
1004 East North Avenue 
Baltimore, Maryland 21202

Dear Mr. Green:

I acknowledge your letter of September 5, 1973. An 
Administrative Committee meeting has been scheduled for 
4 P.M. on Tuesday, September 11th, and if you wish to 
appear in person before the Committee at that time to 
discuss your request, we would be glad to hear you.

William P. Cunningham 
Dean

The Honorable Marvin Mandel 
The Honorable Barren J. Mitchell 
The Honorable Robert L. Dalton 
Dr. Louis Kaplan 
Dr. Wilson H. Elkins 
Dr. Albin 0. Kuhn



p e C E l V E D

I'Jr. WilliM F. Cunningham, Dean 
University of-Maryland School of Law 
SOO West Baltimore Street 
Baltimore, Maryland 21201

Dear Bean Cunningham:
I have received yo\ar letter of August 29, 1973 regarding re-adnu.ssion to the School 
of Law and I am dismayed at the conditions placed upon me. In your letter you stated 
"... all your work for 1972-73 will be cancelled so that you will begin the coming year 
with no numerical average• The Committee decided that if you would prefer to take the 
two-hour course in State and Local Government on Friday evenings, instead of repeating 
the legal,course, you should have the option to do so,..."

' n e i u t p
What I prefer to do is go on to the second year with the knowledge and imderstanding 
that I would need to make up the credits for Property I and Contracts I prior to 
graduation. It is to be noted that those were the only two courses that I actually 
failed according to University regulations. The Administrative Committee is requiring 
me to submit to double jeopardy by repeating courses for which I have received a passing 
grade. I consider such a requirement humxliatxng, arbitrary and discriminatory.
If the Administrative Committee is of the opinion that I should be grateful for being 
allowed to return, I want it to know I am not and never would be under the aforementioned 
conditionst
As such, I am officially requesting that the decision of the Administrative Committee 
be set aside and that I be allowed to register as a second year student. If the decision 
is allowed to stand, I shall utilize those legal remedies available to me and seek 
relief in the appropriate courts.

Very truly yours,

Washington Green, Jr. 

wg/bb
.The Honorable Marvin Mandel, Governor of Maryland
The Honorable Parren J. latohell, U.S. Congressman, 7th District of Maryland 
The Honorable Robert L, Dalton, State Senator, 2nd District, Baltimore City 
Dr, Louis® Kaplan, Chairman, University of Maryland Board of Regents 
Dr. Wilson H, Elkins, President, University of Maryland 
Dr. Albert 0. Kuhn, Chancellor, Baltimore City Campus



DRAFT FOR DISCUSSION 11/5/73 J l  a .

Prospectus:- The Development of Measures of Lawyer Performance

The process through which an individual becomes a practicing attorney 
includes a series of successive qualifying steps each of which must be 
surmounted before the next is approached. Normally, the most crucial set 
of major steps includes (1),successful completion of an undergraduate degree, 
(2) admission to law school, (3) successful completion of a law degree 
program (LLB,JD) and, (4) being admitted to the bar. Each of these steps might 
be regarded as a screening device whose purpose is to eliminate those with 
insufficient skills or knowledge to perform adequately as la\-/yers.

The evaluations which determine whether an individual succeeds at each 
successive step are based to a large extent on test performance, where the 
tests are generally of the paper-pencil variety. The ultimate justification 
for such screening devices should reside in their relationship to actual 
measures of performance in the practice of law. However, little hard evidence 
of this relationship is available. One of the principal reasons for the 
lack of data is the absence of well'^defined performance criteria for the 
legal profession. In a recent review of research on the legal profession 
Maru (1972) states that "An answer to the competence question does not now 
exist and would be difficult to produce,"

It is the purpose of the proposed research to develop measures of per­
formance in the legal profession and to use these measures in a preliminary 
study to gather evidence related to the validity of screening devices such 
as the Law School Admissions Test (LSAT), law school performance, and the 
bar examinations. The materials and methods developed would, if the project 
is successful, be useful in a wide variety of studies in selection and 
training of la^>yers and in the management of situational variables that might 
influence performance.

Me thod

The proposed research can be divided into three major phases. The first 
phase will consist of a survey of members of the legal profession -(those who 
have been admitted to the bar in at least one state) aimed at more clearly 
delineating what lax-Tyers do and what would distinguish a highly competent 
from a less competent lawyer. The second phase V7ill be concerned with the 
actual construction of measures of performance that can serve as criteria; and 
the third phase will be a field testing of the criterion instruments.

Each of the phases will be conducted with the help of an advisory committee 
consisting of key members of organizations of the legal profession. An advisory 
committee exists now, in fact, and will provide guidance in writing a formal 
proposal should one be requested. Members of the present committee are drawn 
from the Association of American Law Schools, the National Council of Bar 
Examiners, the Law School Admission Coxmcil and the American Bar Foundation.
It is anticipated that these same organizations will continue to be Involved



and the participation of other Interested organizations will be solicited as 
appropriate. Sub-committees consisting of persons with particular Interest 
and/or expertise in the various aspects of the study will also be 
established as required.

Phase I

The purpose of phase I will be to make a functional differentiation of 
the duties and activities of members of the legal profession. Once the 
various roles have been delineated a more in-depth analysis of the role will 
be undertaken to determine what might distinguish the highly competent 
practitioner from his less competent counterpart. The steps In phase I can 
be tentatively described as follows:

A. A review of relevant literature will be undertaken. Maru's (1972) 
work serves as a convenient starting point since it, provides an up-to-date 
overview of recent' research. Works cited by Maru which appear to be of 
particular interest include: Johnstone and Eopson’s La:wers and Their Work 
(1967); Donnell's volume on corporate counsel (1970), and Carlin's (1966) 
study of the solo practitioner. Mayer's (1966) book, while written for more 
popular consumption, will also be included as a starting point, Kelso's 
(1972) study provides a rich source of data on the types of tasks performed 
by a fairly representative sample of legally-trained people. In addition to 
the citations suggested by the works mentioned above, professional journals 
(especially law journals) will be searched and an attempt will be made to 
find relevant unpublished sources through advisory committee contacts.

The end product of the literature review will be a tentative breakdown 
of the legal profession Into functional areas, with a listing of major tasks 
performed within each area. It is anticipated that this review will be 
published and available for purposes other than those listed below.

B. Using the results of the literature review and with the help of the 
Advisory Committee, a survey questionnaire will be developed. The questionnaire 
will consist primarily of items describing fairly specific tasks which a 
lawyer might perform. In responding to the survey the lawyer will be asked
to describe his own role in terms of the tasks listed. The range of tasks will 
be as inclusive as possible so that most of the tasks performed by a corporate 
lawyer as well as a lawyer who worked primarily in the area of matrimonial 
law would be included. The lawyer will also be asked to categorize himself 
In terms of his self perceived speciality (e.g., criminal law).

C. The questionnaire will be administered to a large sample of legally- 
trained people. The sampling plan will be one that ensures Inclusion of 
representatives of the various roles in which attorneys engage and therefore 
may not be a national sample. State bar associations, the A||.erican Bar 
Association and the law schools are potential sources of sampling lists.



stratification variables will be more fully specified in the proposal but 
would probably Include: time since law degree; practice situation; rural- 
urban; and sex. The 1971 Lawyer Statistical Report (1972) will be utilized 
as a source in making some of the sampling decisions.

D. Questionnaires will be analyzed using relevant statistical 
techniques which will be more fully elaborated in the proposal. Potential 
methods include; analysis of mean frequencies of tasks performed within 
each of the self-described areas; factor analysis, which should yield 
coherent task clusters; and latent structure analysis which might be used 
in an attempt to verify empirically a hypothesized set of functional areas.

E. Once functional areas have been identified, several lawyer- 
respondents representing each type of practice situation will be interviewed 
more intensively in order to better understand their roles. In addition, 
the activities of at least one respondent within each area will be closely 
followed over a period of several weeks as a case-study. It is anticipated 
that in this way we will be able to adequately describe the work of several 
types of lawyer.

F. A phase I report will be written describing the results of the survey, 
interviews, and case studies. Tills report should provide the basis for many 
studies of the legal profession in addition to the work outlined below. It
is anticipated that this phase of the study will result in a publication of 
monograph length.

Phase II: Criterion Development

The phase I results should provide a rich source of material for the 
development of performance measures. It is assumed that the factor analyses 
of the questionnaire data will derive clusters of tasks that will remain 
relatively constant across different functional areas (though not all areas 
will have the same set of clusters, obviously). These task clusters will 
serve as the basis for development of subjective measures which will take the 
form of behavlorally anchored rating scales (Smith and Kendall, 1963) and 
will serve as guides for the development of other measures such as job 
knowledge tests, in-baskets, and other work-simulation tasks.

It is anticipated that a variety of measures will be developed some of 
which may be suitable for some areas but not others. An in-basket test 
suitable for corporate lat.7yers might not be appropriate for a criminal lawyer, 
for example. A brief description of some of the potential measures follows.

A. Behavlorally Anchored Rating Scales were originally developed by 
Smith and Kendall (1963) for rating the performance of nurses on several 
different dimensions and have since been applied to a wide variety of fields 
including counselors (Maas, 1963), research engineers (Sprecher, 1965), farm 
managers (Carlson, 1967), graduate student performance,^ and the undergraduate

A. B. Carlson and R. R. Reilly 
be completed early 1974.

directing this effort which should



performance of law school applicants,^ The behavioral anchor approach 
attempt's to reduce problems inherent in rating, such as leniency and halo, 
by forcing the attention of the rater on behavioral incidents relevant to 
the qualities being assessed. The behavioral incidents are used as "anchors'' 
to define specific numerical points on the scales. Scales suitable for peer 
ratings and self-ratings will be developed,

B. Job Knowledge Tests could be constructed for different functional 
specialities with the help of experts in those specialities. These measures 
would most likely be in the form of multiple'^-'choice tests.

•C, An in-basket test is a collection of documents that presumably 
have accumulated in the in-basket of an administrator and that await his 
attention. The documents in the in-basket constitute the test items. The 
examinee responds as if he were actually on the jobj whatever he produces 
in working on the simulated job are his "answers" to the test items.

D. Other simulation techniques, may be tried. One promising approach 
utilizes videotapes to present realistic situations to the subject such a.s a 
discussion involving two lawyers and a client, the subject playing the role 
of one of the lawyers. At certain points in the discussion questions are 
directed to the subject and the tape is stopped while he responds (his answer 
being recorded on tape). Such methods have been used on an experimental basis 
with classroom teachers^ and could be adapted for evaluating lawyers.

Another potentially useful technique might utilize an approach similar 
to that of Frederiksen, Evans and Ward (1973)•for studying scientific 
creativity. These authors are studying the ability of psychology students 
to formulate hypotheses, by presenting data in the form of tables or graphs 
and then having each subject develop a variety of hypotheses which might 
account for the results. This particular approach probably falls, in terms 
of realism, somewhere between objective job knowledge tests and simulation 
techniques such as the in-basket.

In addition to simulation techniques, tests, and rating scales, an 
attempt will be made to identify relatively objective criteria that in the 
judgment of the advisory panel and other consultants would be relevant to 
degree of competence. Measures such as annual income and percentage of cases 
won are examples. Such measures have obvious flaws (e.g., income is related 
to type of practice and geographical area) but it may be informative to 
examine them.

The principle outcomes of phase II will be the competency measures which 
can then be used as criteria for use in phase III. A byproduct of phase II 
will be a set of devices (such as the in-basket) which have value not only as 
criteria but also as instructional tools which could be used in law schools 
and/or on-the-job training.

R. R. Reilly and Jois Crooks have developed a set of 16 behaviorally 
anchored scales which are currently being field tested in cooperation with 18 
law schools.

3
F. McDonald Is directing this research at ETS with support from the 

National Teacher Examination Program,



Phase III; Field Testing of Criterion Instruments

A sample of 200-300 practicing attorneys will be used for field testing 
of the criterion instruments. The sample will Include representatives of 
each of the functional areas defined in phase I. One excellent data base 
for drawing such a sample is available at ETS in connection with the 
"Comparative Validity Study" now being directed by Carlson. The Comparative 
Validity Study is examining the relationships among intermediate measures of 
performance such as undergraduate performance, LSAT scores, law school 
performance and bar examination results. Also, Professor Kelso's data (Kelso, 
1972) which he is willing to make available for the study, provide a sample 
of lawyers who have been practicing longer than those in Carlson's sample.

Using data gathered on the samples described above, we will study the 
psychometric properties of the criterion measures. The concurrent validity 
(convergent and discriminant) and reliability will be studied. Convergent 
and discriminant validity of the various criteria will be studied by 
examination of the correlations of the criterion measures with other, more 
familiar, measures. Also since it is likely that the domain of lawyer 
performance is multidimensional, particular emphasis will be placed on 
describing the nature and dimensionality of that domain.

Outcomes

A report describing the field testing will be written at the end of 
phase III. The resulting set of criteria could form the basis for a series 
of studies of the legal profession. One such study, alluded to earlier, 
would take the form of a longitudinal validity study. Such a study would 
focus on the relationships of law school admissions Information, law school 
performance, bar examination performance and performance as a practicing 
attorney. Another study could be aimed at examining the effects of individual 
law schools on career performance.

The criteria that are developed could also be used in comparative 
studies of teaching methods and in studies of situational variables (e.g., 
climates) on performance. Another potential use of these measures would 
be as part of a set of performance measures used for monitoring the continued 
competence of practicing attorneys, either through a self-assessment system 
or a national examination program (possibly even a periodic recertification 
program), ■

In addition, other versions of the criteria could be used as the basis 
for training materials both in law school and on-the-job. Finally, the 
results of all three phases of the project could serve as a valuable resource 
for researchers examining other professional areas.



It is anticipated that the research that is briefly described above 
would span a four year period. Phases I and II should each require 
approximately 18 months running consecutively and phase III an additional 
12 months.

The key personnel who would be assigned to 
project would include:

ETS task force for the

Name Title

Leonard Baird Research Psychologist in Higher Education
Alfred B. Carlson Research Psychologist and Assistant Director

for Graduate Program Research
Franklin R. Evans Research Psychologist and Assistant Director

for Business and Professional Program Research
Norman Frederiksen Senior Research Psychologist and Director,

Division of Psychological Studies
Richard R. Reilly Research Psychologist and Assistant Director

for College Board Program Research

Advisory Committee Members

Name

Professor Charles Kelso

Professor Spencer Kimball 
Dean Norman Penney 
Professor Garrett Flickinger

Joseph Covington, Esq.

Judge Roy Wilkinson

Title

AALS Executive Committee, Liaison to the 
Advisory Committee

Executive Director, American Bar Foundation 
President, Law School Admission Council 
Chairman, Test Development and Research 
Coimnittee, Law School Admission Council 

Director of Testing, National Conference of 
Bar Examiners

Chairman, National Conference of Bar 
Examiners



American Bar Foundation. The 1971 Lawyer Statistical Report. Edited by 
Bette H. Sikes, Clara N, Carson, and Patricia Coral. Chicago: 
American Ear Foundation, 1972.

Carlin, Jerome E. Lawyers’ Ethics;- A Survey of the New York City Bar. 
New York: Russell Sage Foundation, 1956,

Carlson, Alfred B. Criteria for farm managers. Research Bulletin 67-31, 
Educational Testing Service, Princeton, N. J. (Thesis for Ph.D., 
University of Illinois, 1967).

Donnell, John D. The Corporate Counsel; A Role Study. Bl-omlngton: 
Bureau of Business Research, Graduate School of Business, Indiana 
University, 1970.

Frederlksen, N., Evans, F., and Ward, W, Development of provisional
criteria for the study of scientific creativity. Paper presented at 
the Annual Meeting of the American Educational Research Association, 
Nex̂  Orleans, February 26, 1973, (Also RM 73—3, Educational Testing 
Service, Princeton.)

Johnstone, Q., and Hopson, D. Lawyer 
Bobbs-Merrill Co., 1967.

and Their Work. Indianapolis:

Kelso, Charles D. Part-time Legal Education. Association of American 
Law Schools, Washington, D. C. 1972.

Maas, J. B. The structural scaled— expectation interview as a selection 
instrument. A reliability study. Unpublished doctoral dissertation. 
Cornell University, 1953.

Maru, 0. Research on the Legal Profession;^ A Review of Work Done.
Chicago, American Bar Foundation, 1972,

Mayer, Martin The Lawyers. New York: Harper & Row, 1966.

Smith, R. C., and Kendall, L. M. Retrmialatlon of Expectations; An
approach to the construction of unambiguous anchors for rating scales. 
Journal of Applied Psychology. 1963, 47, 149-155.

Sprecher, T. Clarifying anchored rating scales based on performance 
incidents. Research Bulletin 65-24, Educational Testing Service, 
Princeton, N.J.



RslS-tionshlps îjr.ong Law School Predictors ̂ Larf
School Performancej and Ear Exaniination Results ■

Alfred B. Carlson 
Charles Werts

Educational Testing Service 
Princeton, Hevr Jersey 

February' 1973



Abstract

The purpose of this study is to empirically examine: l) the validity 
of undergraduate grades and LSAT scores for predicting measures of acade-mic 
perfomance beyond first year lav; grades and for predicting performance on 
the bar examination/ 2) the relationship betvreen academic preparation pro­
vided by the lav/ schools and certification for professional practice pro­
vided by the bar examinations^ 3) "the validity of the bar examination for 
assessing the content knov/ledge of the applicant and his ability to apply 
that Icnowledge in fact situations,, and A) the interlocking structxire of 
the series of significant measures of aptitude and preparation tal<en on the 
prospective attorney prior to begirmdjig professional practice. The rela­
tionships among academic grades^ test scores^ and bar examination results 
vd-11 be exaniined for individuals v/ho took bar examinations in any one of 
seven states in July^ 1972* The relationships -will be examined for groups 
defined by law school attended; age^ race^ and sex of candi.date; and state 
in v/hich bar examination was taken.



Ailfred B. Carlson 
Charles Kerts

Relationships Araong Lav School Predi.ctorSj Lavr
School Performance, and Bar Exa’iiination Results

The competency of indisdduals expecting to practice law is the subject 
of a continuous process of- formal evaluation extending from the point of 
admission to lax-r school to the point of talcing the bar examination. Of great 
importance in admission to law school are two measures of acadeinic competency. 
One of them, the undergraduate record, provides a measure of prior achieve­
ment in an acadeimi.c setting; the other, the Law School .Admission lest score,
■ functions as a measure of the extent to which the student possesses certain 
types of academic- skill which have been found to be necessary to the effective 
study of law. Having been admitted to law school, the student is periodical.ly 
evaluated by means of examinations which, at a time when the -̂ -/hole process of 
academic evaluation is being called into question, probably retain more of 
the rigor formerly associated w'ith examinations than is true in most segments 
of higher education. Finally, the aspiring attorney must surcdvs the ultimate 
test of competency to practice through submit-ting to one of the state 
bar examinations, many of which now include the Multistats Bar Examination 
as a major component. • ' . -

The LSAT and the IBS taken together with lai-r school grades provide a 
connected set of measures of great interest both to the Lav<̂  School Adird-ssion 
Council (LSAiG), to the Association of American Law Schools (/lALS), and to 
the Kational Conference of Bar Examiners (NCBS). The -LSA.C has long been 
interested in studying the validity of the LSAT against a criterion which 
is closer in time and substance to actual professional practice than are the 
la’w sCiiool grades thich constitute the usual criterion. The ndb provides 
one such criterion in that it is a uniform measure of acmonstratcd relia­
bility 'which is used as part of the bar examinations in a large number of 
states. La’rf faculties, represented thro’jgh the AuALS, have or ought to 
have a deep concern v;ith the processes whereby the students v;ho sit in tbeii’ 
c3.ass(::s are selected and, furtiiCr, 'with the nature oi tho i'cl;ieionship 
h-eU-a-:.:! acad-emic pu'cparation for practice and the certification process



vhich is prersqaisite ao enti’y into the profession. The pivotal position 
of lav/ school grades betv.'Seii advlssion to legal education and adiaission to 
the bar makes it imperative that their relationship to -undergraduate grades 
and L3AT scores on the one hand and bar examination results on the other 
be understood as clearly as possible. Finally, the HCBE needs objective 
evidence that the J-EBE is positively related to significant elements in the 
developmental process leading to competency in the practice of lav,-. The 
LSAT scores, insofar as they reflect the ability to deal vrith language at 
a high level of complexity and to engage in processes of orderly reasoning, 
offer one such measure. Lavr school grades, prov/iding, as they do, a record 
of the extent to which a student has mastered the academic substance of the 
lavf, offer another.

It is true, of course, that the determinative function of the LSAT, 
law school grades, and the 1-BE in the progress of students tovrard legal 
practice could be much better understood and justified if it v/ere possible 
to study their relationship with some measure of actual performance in the 
practice of lav/. So far, no acceptable measure of performance has been 
devised and, although wrark tow/ard the development of such a measure should 
be instituted, the study of the relationship among measures which, althoughi 
admittedly partial, are available and are accepted as having a substantial 
degree of relevance should not be delayed. The need for such a study be­
comes urgent as the gate-keeping function of lav; schools and bar examina­
tions is increasingly challenged.

In the study which is proposed here, the major thrust is tovrard the 
establishment of a network of relationships among.the LSAT scores, overall 
lav; school performance, MEE scores, and grades on bar examination essays. 
Those liseasures are taken at points eodvendi.ng over a period of roughly four 
years during vvhich a considerable amount of developsvental change can occur 
in cUi individual. This fact, taken together vfith the less than perfect 
reliability of each of the measures involved, v.’ould indicate that the corre­
lations mr.ong them v/ill be far from perfect. Nevertheless, it is reasonable 
to exjvcct that they will be substantial and, further, that the measures

\;j.ll prove to bo ijigi'Oy ir;tordej;endent and, so far as validity is



-3-

Beyond this basic analy^sis, it would be possible to obtain a number of 
subsidiary measures which, when appropriately analyzed, m g h t  reveal much 
about the structure of the various principal measures mentioned above.^ Thus, 
for example, the LSAT Vfriting Ability score might be examaned in relation to 
JSE scores and bar exani-nation essay grades to determine the extent to which 
the level of w.riting ability would explain discrepancies; law school graces 
in courses corresponding to the subjects covered in the iSE co'old be corre­
lated with MBE pai't scores. In addition, if appropriate identification 
could be obtained and if sample size warranted, it would be possible to 
conduct parallel analyses on ethnic samples to determj.ne the extent to 
which relationships among the variables under study are constarit across 

racial groups.
The study outlined in what follows offers boards of bar examiners 

represented through the KOBE, law teachers represented through the AAIS, 
and lav; schools represented through the I13AC an opportunity to cooperate 
in a study of the extended process wfhereby vindergraduates beconie law students 
w.ho, in turn, become practitioners of law. This process is mai’ked by several 
stages at each of wwhich determinative evaluations of competence are required. 
It is important that the results obtained from these evaluations be v;ell 
understood so that decisions based on them can be made as fair as possible.
It is irr.portant, too, that the relationships among the various msasures 
of competence be laid bare so that each can be defended as having legi­
timate place in an integrated and rational process of evaluauion.



-4 -

Previous Research

Two studies conducted for the LSAC have gathered data re3-evant to the 
proposed study. The first of these (Johnson and Olsen, 1952) examined the 
comparative validity of the LSAT for predicting first-year lav; grades, 
three year average lav; grades, and first and third year pass-fail criteria.
The results indicated that (at one lav; school) the LSAT score predicted three- 
year grades better than it predicted farst—year grades and that (at the other 
lav; school) the LSAT predicted completion of lav; school as well as ccmple- 
tion of the first' year of lav; school.

The second study (Winterbottom, Pitcher, and Schrader, I963) v;as con­
cerned with the effect of lav; school ijistruction on performance on the 
test. As a part of that study, correlations betvieen LSAT scores and 
average grades for each year as well as the three year average were computed. 
Using data pooled across the two schools studied it was found that the LSAT 
had a larger correlation with three year average grades than with first- 
year averages and a larger correlation with second-year grades than with 
first year grades. Interestingly enough similar results were obtained for 
LSAT scores v.hich were earned prior to admission to lav; school and for 
those obtained from a readministratioa of the test in Hay of the law stu­
dents' third year.

The authors are, of course, av;are of the extensiv^e literature con­
cerned with the validity of the LSAT and undergraduate grades for pre­
dicting first year law grades. However, at this time we are not aware 
of any literature relating these predictors or lav; school grades to bar 
examination grades. V;e are currently pursuing leads related to informatxon 
on such studies and may uncover one or more in the near future.



Purpose

The purpose of the proposed' study is to e:x:amine relationships among 
academic grades, test scores, and bar examination results for individuals 
■who have taPen bar examinations in seven states* Specifically the research 
is designed to provide answ^ers to the following questions;

1. Vrnat is the relation of undergraAuate_^radas,,_J,SA;L-g^^
lavf school grades to performance on the state„^x_ejĉ ljlia:y:Qu? Which single 
predictor best predicts total performance on the bar examinataon? VJhat 
weighted combination of.variables best predicts total performance on the 
bar examination? Xs essentially the same weighted combination of variables 
predictive of the essay portion of the bar examination as it is of the }SS? 
Are law school grades, londergraduate grades, or LSAT scores better pre­
dictors of the KBS? Do essentially the same relationships hold for the 
essay ex.anlnation? Is the optimum combination of variables for predicting 
essay scores essentially the sarnie fi’om state to state? Assuming that 
the variables could be made perfectly reliable, do the patterns of rela­
tionships among the variables change in fundamental ways? (This step in 
the study vlll facilitate the process of drawing inferences about rela­
tionships among the abilities and competencies reflecced in test scores 
and examination grades.)

2. Vrnat is the relation of undergraduate grades and ISAT scores to. 
grades obtained in lav: school? Modifications in the LSAT battery have been 
made based on the validity of the proposed modifications for predicting 
first year law school grades. .Is the test battery equally predictive
of grades obtained later in lav; school? Vfnat are t)ie best predictors of 
second and third year lav; school grades? Is essentially the same v;eighted 
combination of undergraduate grade point average and LSAT predictive of 
three year cummulative grade point average in law school as of first year 
grades? What is the reliability of lav; school grades? If the variables- 
are corrected for unreliability vd.ll the pattern of relatjonslm ps change?



3. Do the patterns of relationships exejn.ined
c’jestions above ho.ld for groups defined by sex? by race? bv age?. Is pre­
dictive accuracy greater for fecialss than nales? for v/bites than blacks? 
for older students than more typical students? Are the patterns of rela­
tionships acvong variables different for different groups?

4. Vfhat is the relationship of grades in law school to performan,c_e 
on the parts of the tS3 and on the essay -portions of bar e?:arainations?_
VRiat is the relationship of firstj second, and third year lav; school grades 
and cuTUnulative three-year average to IBS part scores and bar examination 
essay grades? Vfnat is the relationship of separate course grades in law 
school to Io3E part scores designed to measure competence in corresponding

■ areas? Would the relationships among these variables be essentially 
changed if perfect reliability were -.-assumed?

The sub-questions uhder each of the four major research questions 
exemplify questions vfhioh v/ill be considered and should not be interpreted 
as an exhaustive list. The authors encourage sponsoring organizations to 
suggest specific questions as well so that the results of this study will 
be as useful for lavf school administrators and bar examiners as possible.



Procedure

The basic data collection' procedure for this study is to obtain the 
cooperation of seven stats boards of bar examiners and of the lav/ schools 
v.-hich train the majority of the bar applicants for each of these states. 
Test scores, academic grades, and bar examination results will then be 
obtained from the state boards and the lav/ schools. These data v/ill be 
analyzed by correlational methods.

The Sample
Only states participating in the Multi-State Bar Examination (KBE) 

Program will be selected for participation in this study, b'ithin that 
group states will be chosen based on the number of examinees tested at the 
July 1972 administrations of the Bar'-Examination. There are eleven 
states which tested more than 350 people at the July administration. The 
seven states^ testing the largest number of people will be contacted first. 
If cooperation can be obtained from all of these state boards, this will 
constitute the state sample. If one or more of these sev/en are unable or
unwilling to coonerate, the remaining four of the eleven states will be

2contacted to solicit their cooperation. No additional states wall be 
ashed to participate regardless of the degree of cooperatxon obtained 
from the eleven; the numbers of individuals tested in the remaining states 
participating in the l-BE Program are too small to constitute reasonable 
samples for correlation analyses.

Each state participating in the study v/ill be asked to supply the 
names of the lavr schools attended by the majority of the candidates v/itliin 
their state and the appror-dmatc number of candidates from each of those 
schools. These lav/ schools v/ill then be contacted to solicit their parti- 
cip/ition in the study. The law schools v/hich agree to cooperate v/ill 
constitute the lav/ school sample.

-1-

^-Califor; via, F lo r id a , Georgia, Nai-;/3a:,;!, Nee Jer Ohio jind

^Coloradc>, Connecticut. Min.ovru /s:d Omyon



The Data
Each state board vrill be asked to supply the follovri.ng information 

for each individual who took the Bar Examination in July 1972;
1. Candidate's Name (last name first)
2. Lav; School attended
3. Month and year law degree received
4 - 8 .  Each MBE part score
9. MBE total score

10. Score on Essays section of Bar Exami-nation
11. Passed or Failed State Bar Examination
12.. Number of times state bar examination talcen
This information wdll be keypunched and a computer generated roster 

produced for each law school. This roster will list graduates in alphabeti­
cal order vd.thin month and year degree received. An arbitrary "study 
identification number" vdll also be listed for each individual. Cooperating 
law schools will then be sent a copy of the roster and asked to provide the 
information listed below- The rosters for schools which have not been 
asked to participate will be examined to determine if they have a sufficient 
number of students to warrant their participation if it becomes necessary 
to contact additional schools. Participating lav; schools will be asked to 
provide:

1 - 4 -  Undergraduate grade-point-average (GPA) by year
5. Overall Undergraduate GPA
6. Law School Admission Test (LSAT) score
7- Writing Ability (VIA) test score.
8. General Background (GB) test score
9. Number of times LSAT taken

10. Course grade in Torts
11. Course grade in Real Property
12. Course grade in Evidence
13. Course grade in Crimdnal Law
14- Course grade in Contracts
15 - 17. Lav; GPA by year
18. Ovoi’all Law GPA



-9 -

19. Individual's birthdate
20. Individual's sex
21. Individual's race, if Imovm
22. Kuxber of "Clinical Courses" taken, if available
The data from state boards and law schools will be merged and individual 

names purged from the merged data tape; law school attended and state of oar 
examination vill be retained. A tape containing study indentification nnrber, 
name, lav/ school, and state of bar examination will be created for possible 
follow-up (see last section. The Future) and placed in secure storage.

Saja, Analysis -
Because of the statistical nature of the analyses to be carried out, 

it is desirable to base them on as lai'ge groups as possible in order that 
the results will be maximaHy stable. In formulatmg grovips, iu is impor­
tant to avoid mixing indi’/iduals for whom the measures available (test 
scores, grades etc.) have radically different meanings. It is assumed 
that, because grading procedures followed by different bar examination 
boards vary v/ldely, it would be inappropriate to combine within the sane 
group individuals who have taken bar examinations in different states.
Thus, the analyses will be carried out separately by state. Tlve situation 
regarding the comparability of law schools grades is not so clear. It 
is therefore desirable to determine in advance whether, on the basis of the 
variables available, groups of applicants from different law schools taking 
the bar examination in a given state are sufficiently similar to justify 
combining into a single analysis group. The following paragraph provides 
a somewhat technical description of the procedure by which this will be 
done. As a result of this procedure, groups of maximiim appropriate size 
will bo formed within each state. If the aialysis indicates that the 
combination of raw data for law school groups within a state is not 
appropriate, law school grades will be adjusted statis..lcally to make them 
more comparabl.e and the adjuf^ied data will bo co/vbinod. It is p/’cfcrable 
to combine the data in their :-aw foma if the analysis descril/od below 
justifies t’nis but cosbining acijusLed data will provide a 'sc-tisfactory 
basis foj’ ij:‘OCeeui.ag iu' U.st a.s J:SS imnsaLbic.



The first level of simarization of data vdil be by law school waurin 
the group of applicants tsJcing the bar examination in a given state. For 
each law school group with each state, means, standard,deviations, covari­
ances, and correlations anong all grads and test score data will be computed. 
Tests of the homogeniety of regressions (Gulliksen and Wilks, 1950) v/ill then 
be performed v.ithin each state to determine whether the data from the. 
different lav; schools providing candidates to that state can be combined 
for analyses at the stats level. If these tests jjadicate that uhe data rOi 
the total group can be combined, means, standard deviations, covariances, 
and correlations will be computed for each sex group (2), each racial group 
(3; black, white, other minority), each age group (2; 28 and younger, 29 and 
older). Sk.-iilar'tests of homogeniety of regression will then-be perfomed 
to determine vrhether data can be ccrnbined for these subgroups. Thus four 
-analyses for each state will be performed; one for law school groups, one 
for sex groups, one for racial groups, and one for age groups. If the 
analyses indicate that all groups can be combined, means, standard devia­
tions, covariances, and correlations will be computed for the total 
sample v.dthin each state.

If the analyses described above indicate that the data cannot be com­
bined for law school groups, Xavf school grade data vrlll be adjusted and i.he 

adjusted data combined.^ If the analyses by sex, racial, or age groups 
indicate that the data cannot be combined, data will be analy^zod separately 
for the groups which cannot be combined.

Differences in the meaning of bar examination grades result in large 
y.-.rl from differences in essay grading procedures. Insofar as these grades 
reflect the 1-SE scores, they are more nearly comparable across states. 
Therefore, the possibility of combining data across states, excluding the 
bar exaniination essa^e grades vrill also be exOimi.ned.

Hegressien ajialyses of selected sets of variables v.dll be directed 
toward" detenndning answers to the questions in the preceding section of this 
, ;'.;e-r defining the purpose of the study. Those analyses v.dll be based 
f-': r.:'cups formulated as described above, (V.'hore sample sice pemits.

■’Tim' adyxdscni-. S'c:r.; sis of c:'l ■;b’'at'! r:g 1 nv: anhool grsc!'U' by 7’cfc7’̂nc': 
I'uanr; ;-i:d s.tandard devi ati.ori.s of ila; ll'AT scores jor sLuderits .ii’ssi 

' ; sr rch:-;ol. This Jias t-he (-ffcrct of ccs.tensating to a iimUed oxlent
” i.frar(.-iices in gradi.ug sLcs.uarJs. •



-1 1 -

analyses will also be carried out based on all individuals frcni a tproii 
school.) Vihere appropriate, these analyses will be replicated assuniir.r; 
perfect reliability for the variables involved. Tills analysis v/ill fiiciil- 
tate inferences regarding relationships among the underlying abilities 

and coEpetenoies measured.

Advisory Coimittee
It is recoimnended that a four to six man adidlsory committee be appointed 

by the LSAC, the AALS, and the NOBS to consult with the study directors.
The function of this committee will be to review in detail progress and 
plans for the study and to adwlse the directors on the conduct of the study. 
The committee would probably only need to meet tvfO or three times during 
the conduct of the study.. Itr devsloping a budget for the study it has b-eon 
assumed that meetings would ialce place at Educational Testing Service isi 
Princeton, N.J., and that expenses for travel and lodging for the committee 
members would be borne by the appointing agency.



Iinolications of the Research

Before discussing the implications of the proposed research it is often 
useful to speculate about the probable outcomes of the research. Thus xs 
particularly difficult to 'do for the kind of research proposed here since 
it is of an observational nature and is not based on hjppotheses stenmxng 
from pre-lous research in the area. It is possible to generalize, however, 
from the vast body of research dealing vlth the predictive valxdlty oi pre­
vious academic grades and aptitude and achievement tests.for further academxo 
work. We have every reason to believe that undergraduate graaes and LSa T 
scores will be related to lavr school grades in the second and'thxrd year. 
Previous researc'h evidence on the question Oi the relative accuracy of 
prediction for each year is not conclusive.

Law school grades should be-strongly related to bar examination grades. 
It is also to be expected that LSAT scores will be related to bar examina­
tion grades, perhaps more strongly to 1D3E scores than to essaj’’ giades.
Tne overall strength of the relationship between LSAT scores and bar examina­
tion results is open to question. There is some reason to belxeve■than 
the pattern of relationships among the various measures vlll be v e r y  similar 
for groups defined by age, race, or sex. However, the level of predictive 
accuracy may differ particulary for groups defined by age or sex. There 
is also some evidence which vfould' suggest that when variables are corrected 
for unreliability the single best predictor of any measure will be the one 
irmr.ediately preceding it in time.

This research can be expected to have importait implications for 
ad:nissions practices. Generally speaking, the results are likely to lend 
added .justification to the important role characteristically assigned to 
thci undergraduate grades.and the LSAT scores in making decisions regarding 
i-.i;.ls;lon to law school. Detailed results could suggest changes in emphasis 
on ;,̂:.-.e of tils infov.ation or have implications for furth.or research re- 
la',- ! to ihe IS/.T or olher infor;:;ation.



-13-

There are also implications for other lavf school administrators and 
law professors. If, in general terras, the expected res'jlts are obtained, 
they wdll provids empirical confirmation of a relationship which on logical 
grounds has been assumed to exist between the academic preparation provided 
by law schools and the certification for professional practice provided by 
the bar exaxninations. Details of the research results might well have 
implications related to specific courses, to grading; in law school, or law- 
school generally.

.Implications for­ te Boards of Bar Exa
The primary ijap3eioations of this research for bar examiners will be 

the dsLaonstration of -what educational psychologists refer as the construc-c 
validity of the !fflE and the essay examinations. If the- patterns of correla­
tions with the other measures included in this study are as expected, the 
ba.r ex.;aTiination is supported as valid for assessing the content knowledge 
of the applicant and his ability to apply that knowledge in fact situations . 
It will be seen as the final step in an interlocking set of processes, 
logicalI.y related and forming an integrated whole, which lead from admission 
to law school, through scholarly preparation, tp the point of induction into 
the profession. Details of the results maj'- suggest a need for revision of 
one or more parts of the MBE or have implications for state essaj’- examinatior



-14-

Pi.s semjjiat ign_qf

The primary audience for receipt of the results of this study are the 
participating state boards of bar exaaiinerSj the Hational Conference of Bar 
Exarainers, the Association of American Lav/ Schools^ and the Law School 
Adaission Co'oncil. The major research report vdll be directed to these 
audiences. Insofar as results are obtained v/hich v/ould of interest to 
particular lav/ schools or boards of bar examiners but v/hich are inappro­
priate for inclusion in the general report, these 'will be communicated 
to the school or board in a special report.

The authors .anticipate tha.t the results obtai.ned will have implica­
tions for the general area of "academic grov/th" and plan to prepare a 
technical article based on this data for publication in a professional 
journal. As appropriate, other articles maj’" be v/ritten for the Journal 
of Legal Education or a law reviev/ journal.

The identity of individuals involved in the study will not be made ■ 
know in any of the published reports nor will the general report or journal 
articles make it possible to associate data or results v/ith particular 
lai-r schools or state boards of bar examiners. ' -



Jaly 1973 

September 1973 

January 1974* 

July 1974 

January 1975

Contact State boards of bar exaninsrs reque 
data

State board data edited and keypunched 
Contact law schools requesting data

Merge state board and lav/ school data 
Begin analysis

Analysis completed 
Begin report writing

Project completed

*If all data are not available prior to this date it is assumed that completion 

of the project will be postponed 6 months to one year depending on receipt of 

the remaining data.



-16-

rne Future

The study proposed here can be conceived of as the first in a series 
of studies the utlimate goal of -which v;ould be to examine the validity of 
the process through -i/hich one proceeds in order to become a practicing 
attorney. That is^ the next step would be' to develop measures of competency 
or achievement as attorneys and the thd-rd step v;ould be apply these measures 
to the individuals who -were included in the study proposed here. Thus, say 
in 1977, the validity of the LSAT, law school grades, and the bar examination 
for predicting cc.mpstency or attainment could be examined.

If the proposed study is viewed in this perspective it vfould be extremely 
.useful to begin building a "data baric" as part of the proposed study. Some 
possibilities, ordered in terms of completeness and probable cost are given 
belov.m . ■

1. The most inexpensive alternative -vrould be to retain the data 
r

collected for this study so that it or similar data vrauld not need to 
be collected again for these indi-viduals. It is assumed that this would 
mean that complete data vjould be available for three to five -.thousand 
attorneys in seven (or more) states and that state bar associations and law 
school alumni offices could aid us in locating some percentage of them 
v.iien such a study is undertalcen.

2. During the' course of this study it would be possible to contact 
tlie lavf school of every applicant for the participating states and request 
a peraanent address. The procedure w'Ould aid in locating individuals 
several years from nov; but v.'Ould not necessarily mean that academic data 
would be available on a larger group.

3. As part of the current study it --would be possible to contact the 
law scl-iool of every applicant for the participating states and request 
both the academic data and "peraanent address." As before tlic study pro­
posed liere v.'ould include only those individuals from lav/ schools supplying 
a iira.ber of appl.icants to cac;i of tlie seven (or mono) states but the infoi—



-17-

Eation on the remaining applicants would be collected, the data edited and 
merged with the state board data, and "banlced" for future use.

Of course there are other alternatives including attempting to collect 
data from the lav schools of all 11,672 applicants v/ho took the hlBE in Ji’dy 
19 7 2. If there is an interst in alternatives other than the first it woiild 
be necessary that they be specified prior to beginning viork on the project.



special Note

As indicated in the abstract of this proposal, the study it 
embodies would examine the correlations among undergraduate grades, LSAT 
scores, law school grades, i!BE scores, and bar examination essay grades.
The justification for undertaking the study as that these factors consti­
tute a series of selection points through which an individual must pass 
on the way to a place in the profession and it is reasonable to expect 
that, taken together, they should exhibit a substantial degree of internal 
consistency, Ho'wever, in. the discussions leading to the funding of the 
study by AALS, ABA, LSAC, and NCEE, it became abundantly clear that, 
while these oi-ganizations saw value in the study as conceived, they could 
see far greater value in a study that would address the issue of developing 
measures of competency in the practice of law, since it is against this 
criterion that earlier measures of competency must ultimately be validated.

As is pointed out on page 2 of the proposal, satisfactory measures 
of professional performance do not now exist. It would probably require a 
lengthy period of exnloration and development before anything, useable would 
exist. Meanwhile, the proposed study, while only tangentially relevant to 
the broader issue, has the advantage of being immediately feasible. How­
ever, in agreeing to fund the study, the sponsoring organizations pressed 
strongly for the incorporation in the study of some feature that would permit 
at least a start on facing the deeper issue.

To .meet this demand it has been agreed by ETS that the Advisory 
Committee provided for on page 11 will be given a much more comprehensive 
role. As described in the proposal, the functions of this committee would 
be to review progress on the study and to provide advice as to its conduct.
As expanded,the charge to the Coranittee will continue to embrace these 
functions but, in addition, will require the Committee to devote a substan­
tial portion of its time to an effort to identify procedures by which the 
quality of performance in the practice of lav; could be identified. It is 
recognized that significant progress in this task may not be possible 
within the 18 months over which the study w'ill extend and that it may be 
desirable to extend the life of the Committee beyond the duration of the 
study. It is understood further that the meeting expenses for the .Advisory 
Committee will be met by the sponsoring organizations.



EDUCATIONAL TESTING SERVICE PRINCETON. N. J. 08540

Area Cede 609 
921 - 9000

CABLE-EDUCTESrSVC

October 31, 1973

Ms. Jean Fairfax
Director, Conimunity and Information Services 
Legal Defense Fund
NAACP
10 Columbus Circle 
Suite 2030
New York, New York 10019 

Dear Jean:

I am sorry for the delay in mailing this but I was laid low by whatever 
flu is currently upon us. With regard to the Advisory Committee, there are 
no women or blacks on it currently. However, I have passed on your comment to 
John Winterbottom and he is going to take it up with the Committee.

I look forward to your comments on the proposal and to seeing you in 
the not-too-distant future.

Sincerely,

Jenn4 K. Britell
Director, Information Services

JKB/gc

Enclosures

cc: Mr. Winterbottom



iV<^x£iu -  ‘6 r S - '

_





F J i f D A Y ,  D K C E M  il !-;K 21,  1973

WUliam liaspberry

Why Are Blacks Failing Bar Exams?
The problem is not ]ust a t ' Howard 

U'niversity, as I  will explain m  a subse- 
‘ quent column, but the statistics on 
Howard Law School graduates are in­
structive*;—and startling.

For a tin^e, Howard law graduates 
were passing their bar exams at rates 
above the-national average. Look at 

. the percentages for the years starting 
with 1961: .81. 85, 90, 77. 84.. 88, 87, 82, 
79. That brings you up to 1970. Then: 

■for 1970 graduates, the percentage-was 
60; for 1971, 47; for 1972, 35.

I told you the statistics were start- 
 ̂ ling.

. One quick caveat: The figures in­
clude those who passed the bar exams 
after one or more failures, so it is 
likely that the latest figures will go up 
after some of those who failed reapply 
and retake Hie examination. Even so 
the figures are alarming^ especially in 
the context of another set of unveri­
fied figures: Of approximately 823 ap­
plicants who took the D. C. Bar exam 
in July, 1973, about 200 wesesbiaek;^ of)ut 200 wei^%blaek; o f , ,  "Ectu(&t& and gift<

the approximately 5.51 who passed, 
fewer than: 20 were black.

Herbert O. Reid, Howard’s acting 
law dean, reiects conscious discrimina­
tion out of hand. In fact, he says there 
is “probably-morfe of a disposition to 
admit blacks titan at any time in  my. 
memory—they’ve got some dirty work 
that has to be done, serving poor peo­
ple,, for instance.” i
.- Reid suspects that at least a  part of 
the . explanation lies .m psychological 
upheaval black: in d en ts  (and black 
Americans generally)- went, through 
during .the 1960s.. r

“The period we w en t through made 
a lot of blacks question the system in* 
stead, of learning it. Maybe you get a 
different reaction. I’m not sure my son 
would respond to the legal system the 
way (former U.S. Attorney) liave 
Bress’ son would—and this can show 
up in the way ‘ you respond to legal 
questions. , '-..s’. . . - . . v-

ways been subject to a downward pull 
from the rest of the community. I 
mean, if you were caught taking laolin 
lessons, you might have to kick some­
body’s butt. -We were busy rejecting 
wbite values, and some of us threw out 
the baby with the bath.”

One result, according to Reid, is “a 
•sort, of anti-mtellectualism—an atti-. 
tude th a t says that they are quaUfied 
because they are here and their people 
need them and all that, without recog-.

• nizing the highly competitive nature of • 
the profession they have chosen.”
• Herbert Reid- is not simply saying • 
tha t students are lazier Hiau Hiey used 
to  be (although tliere is some of that:

- as well) but that they tend to be more 
concerned about relevancy and quick 
results-^-‘Tn effect, they are trying to 
practicolaw  before they learn  it.”

The psychological and intellectual 
turmoil, of the 1960s has had one other 
result that shows up in bad test scores, 
Reid believes. “Everything is 
‘relevancy.’-, When students started 
..avoiding .tough courses because-Hiey 
weren’t  relevant,’ they turned rSome 
classroom situations into populari^  
contests. As a result,: we lost some of 
the close feeling b e t^ e n  students and,' 
professors—the feelihg that ted some* 
teachers to offer extra h d p  evenings, 
and weekends, to take an almost pa-̂  
rental attitude toward the students. 
Now a  lot of them ,Tust-go. h o to e .;^

That liappenM  06 white c a n ^ s e s  
as well, but like anything, bad, we get- 
more qf it  than anybody else.”

Has Howard been victimized by the 
recent recruiting efforts of prestigious 
white universities? . ..

•T bear that question alt the time,” 
Dean Reid said. “No, Howard is not 
:getting the di’sgs. Qn .paper, ,at-ieast. 
we -are getting better ..people .than • 
wove had before—the same kind of in­
take tliat you’re  getting around the‘

• country, A good share o f ‘B’ and better 
.students.’’ . .

That last edioes the impression of 
Anthony Nigro, secretary to  the Com- 
mittee on Admissions to the D. C. Bar. 
“The caliber o f student has increased 
considerably: over the past several ̂ 

.vyears, due to the increased: competi­
tion of law school admissions.

But if Reid and Nigro see a h ij^e r 
caliber of law students, both black and

- white, the  bar .exam  results; muddle 
the picture Nigro reports a. higher 
passing rate: m : the . past^ five years, 
while Howard’s i trend seems-i straight • 
downhill

Nigro haa no explanation for it,, ex- 
cep-  ̂to say that it  is pot racial diserim- 

-ination on the.part oftheexam inei^- ; ' 
“Pick-out a. folder,” -he: t^dls -a- 'sd- t̂or. 

•‘What do you see? A number; Open 
the folder. Tell me the sex or race of 
the applicant You can’t, J  couldn’t  re- 

/:Sute Mr. Williams’ statistics because I 
■ ^ s t  don’t  know.” The reference,, y as  to 

white/blsck pass ratios supphed by 
S ^ a ry  T; Williams, head of the Metro? 
î ’̂ o litan  Committee to Investigate the 

C. Bar.
Nigro (laughingly) acknowledged 

% ,^at.it isn’t  ..quite .accurate; to-say that 
one at the Admissions Committee 

discriminate against an appli- 
1 a basis of j:ace.

Nigro himself co u ^  a t least ^ g u m i-  
ite,against Ho.ward. g l^ u a te s  if h e t ' 

d to, s in c e fe  is Hie only, persc^ >  
ie of p u t t »  numbers 

names and law schools:“,^ .« ;;j^^
He said he doesn't.



■ T, W ED N E S D A Y ,  D35CEMBEE 26, 1973

William Raspberry

Blacks and the D.C. Bar Exam
William A. Henry II  won’t have yon 

believe that i t  is only Howard Univer­
sity Law School graduates who have 
trouble with the D.C., bar exam. far 
as he is concerned, any black applicant 
is likely to run into more than his fair 
share of-trouble.'

“I went to Georgetown' (University 
Law Center) and made better grades 
than some of the (white) guys I sat be­
side,” Henry said. “But they have 
passed the bar and gone on about their 
business.” Henry has taken the bar 
exam three times and failed it three 
times;- ' ' ■

“Somehow, they’re  putting numbers 
and names and race together and 
we’re being dropped (at the Committee 
on Admissions). I t could be the clerks 
down there. I don’t  know.
. “If i t  was only happening to gradu­
ates of Howard, then  maybe you could 
say it was due to  inadequate training. 
But I  had a M end W'ho went to the

University of Baltimore to 'take the 
Maryland bai” three times. Three other 
friends took the D.C. bar twice. Anr 
other took the California twice before 
he passed it and also failed the New 
York and Colorado bars.”

You get the same kind of gloomy re­
cital from Archie Eichardson, whn 
took his law degree a t Catholic Univer­
sity but failed the D.C. bar, from 

r David Wilmot of Georgetown, who-has 
yet to take the bar, and from black law 
graduates from all over. Several of 
them have suits pending in ‘ various 
parts of the country, challenging the 
fairness of the bar exams.

To those who doubt tha t the high 
failure rate is a result of deliberate 
racism, Henry cites a case he heard 
about. “I think it was in Georgia. Any­
way, a lawsuit was mooted when all 
the parties to the suit passed the next 
bar exam, although all the other 
blacks who took the bar that time

flunked it. The time before that, the 
time that led to the filing of the suit, 
I ’m told th a t all 51 blacks who took it 
flunked.” ' ■

An earlier suit, in Pennsylvania, led 
to the development of the multi-state 
examination, a  multiple-choice test 
which some lawyers sneerihgly call 
“true-false.” Befqre that change, Penn­
sylvania bar applicants were passing at 
a rate of between 65 and 70 per cent, 
with the rate  for black applicants at 
about 30 per cent, according to Judge 
Roy Wilkinson * Jr., a member of the 
Pennsylvania- Board and immediate 
past chairman of the National Confer- 
ence' of Bar Examiners.

The overall rate for the last exam 
was 96 per cent, Judge Wilkinson said 
‘But of 27 Howard graduates who took 

, it, only 11 passed.
“So what do you do?” Wilkinson 

asks. “Unaccredit .Howard? •'ITien what 
about the 11 we got? I  don^t know "the 
solution. But the evidence is that there 
may be a special problem .at Howard. 
Blacks who went to white law schools 
pass with roughly the same percentage 
as whites.”

David Wilmot, who is assistant dean 
and director of admissions at George­
town Law, where he recently ^ d u -  
ated, agrees—up to a  point. “For the 
most part, they (black graduates of 
Georgetown Law) have been doing 
rather weil-^about as well as their 
white counterparts. O ut of the eight or 
nine who took the bar the last time, 
only one missed it, and by only one 
point.”

So does that mean that there is -  
no discrimination, a t least in-the Dis­
tric t of Columbia? “I  really do believe 
there is,” said Wilmot, a  West Indian 

.. native.-“I know they say they have , no 
way of knowing whether you are black. 
They maintained the same thing -when'
I was in law school. But I  had one pro­
fessor who insisted he could tell just 
by* the manner of expression.”

That keeps coming up, although it’s 
awfully tough to find someone who 
can give you concrete examples of the 
expressimis that give blacks aw ^. 
Everybody who mentions it, however, in­
sists th a t' i t  is not a  question of im­
proper grammar or usage, but of style.

- '-Howard:’s- a c tn ^  law deair, HerbeA ., 
O. Reid, says he is

f ^ e v ^ y  now and then”). When I was 
’ (teaching) at Boston College and at 

Rutgers, I  could'sp(^ black papers, not 
on the basis-of bad  [English but I  could 
te ll the activists from, the traditional­
ists from%he way they addressed cer­
tain issues.” Blacks generally have ■ a 
more activist attitude toward the stqdy< 
of law, he said. _ ’

Some"’ black law graduates say the 
giveaway is in short answers. White 
lawyers tetfd to  write more, while 

. ' blacks may  come right to  the point, 
they say; ' -

But if  the question is designed to 
test awareness of several subtle points 
of, law, the right-tot-he-point response- 
may be inadequate.

To the degree that the problem i s  
not legal approach but word usage, 
Wilmot says what many black law 
graduates feel: “If I want to go to 
graduate school for English, I ’ll go to 
graduate school for English, I went f<w 
law, and if I  don’t  have as well a caor 
trol of English as some others, that’s 
beside th e  point as long as I  use the 
right legal approach in solving legal 
problems.”



OST. FRIDAY, D E C E M B E R  28, 1973 A 2.1

William Raspberry

DiscriminaLion and the D.C. Bar Exam
A committee of the  unified D.C. Bar 

will shortly begfm an- iitve&tigation-of-; 
the local bar examining system to s^e 
if . it can l^ rn -w iiy -a  clisproportlona^ 
number of blac^ law graduates are 
failing the bar exams.

It: could ■ hardly have chosen a more 
difficult and thankless assignment.. It 
will either ^discover that there is dis­
crimination or that' there isn’t. And ei­
ther way; i t  wlil leave- a lot of people ) 
unhappy.

One question that will have to  be an­
swered is-whether*^ it  is.possible for ex- 
amj.ners vto .discern which examination . 
answers are written-'by black candi­
dates. Some blacks who have flunked 
the bar say it is possible, through syn-. 
tax, word selection^ and general writ­
ing “style,’’.to. guess which candidates 
are blacks And if  i t  is possible, then de­
liberate racial diserlminalion becomes

a possible explanation for the high 
failure rate of black candidates.

Other black lawyers and law candi­
dates who believe it is possible for ex­
aminers to discern race won’t go so far 
as to allege deliberate' discrimination. 
They say only that the things th a t pro­
vide clues that an applicant .-is - black 
may produce negative reactions on the: 
pare Of white examiners^ I n ; either

One of the giveaways to  blackness, 
som eblack lawyers say, is that blacks 
are more likely to give short, to-lbe- 
point answers to legal questions.

But, to Ibe degree that the short-an­
swers ignore the subtleties that an ex­
aminer may deliberately hftve built 
into the question, is i t  discriminatory;- 
to  mark off for short .answers? Isnit 
the candidate who overlooks subtletles, 
in an exam question likely to overlook

subtleties in drawing up or interpret­
ing laws or contracts? And doesn’t that 
mean-'that his clients will be poorly " 
served? . ■ • - . ‘

And if writing st^e-^rhetwHr,^ collo­
quialisms and the rest-revokes nega­
tive responses from bar examiners 

. isn’t  it  likely to have the same: effect 
on judges who read-'briefs written in '. 
that style? And whatever the fairness 
of that response',"isn’t  it  the cEent ■who, 
is penalized’ -

All of which raises another quesfioA;. 
about the -bar examst To what :
are they lob related’ Is there 
meaningful correlation hetwden b ^  
exam scores, and the->suG0essftil>pr-&^J 
tiee of law’

That one’s awfully tough to ■
partly because of the problem-of deWp^ 
mg “successful nractice” Some law ” 
graduatesr-including many 

. failed their bar exams—«ay;^e t ^ t r ^ -  
.sults don’t'dem onstrate anylbing-ru^?..

" fui. Graduation from-an accredited 
school should be credential e n o u ^ ifo r  
admission to-the b ^ ,  they say.- •
' That conclusion isr supportabieVo*^ 
i f  i t ’IS assumed th a t-b ar ■exams-.iidop^ . 
weed out the poorest potentfel law­
yers After all, tpsts must weed out 
s<x>nethmg “ ’

Nor can there be much doubt tfiht 
blanketing in all law , graduates ̂ would 
produce some incompetent : la\^>^s ' 
who otherwise would; no t be p r a e tK ^  -

The D;G. Bar committee, will h d v e ^  • 
look at -one-;other--^uest«snt 
up again and again from 
who fail their bar exams a fMled < 
didate’s right to review hiS" i 
tion paper.

Not only is such review not possibifif 
under the present set up; there' is^^r^ij 
quirement that the papers be ,-deL 
stroyed after 90 days. Thus, i f  th e r e to  
racial discrimination mtbei-gs^d&#'0#; 
tests, the present system makesrft'i^elpsif' 
tually impossible to  d is^v e r it

I t  seems a  raa tt^ "o f ' Simple justice.,
' th a t a candidate be pepnatted..td 

view, his .work;. papticukr-^Vrif t t  
: been deemed unsatisfactory,. 

isn’t  quite as simple a  proposition 
seems. .

To, begin with, granting kn appli|:aii1r 
, the right to see his paper doeai’t  fn̂ a&'>
'  muph unless there ik 
t out precisely whici

tion was ana wny  ̂̂  ̂
words, pan tin g  the b i^ t^oL  

' -.review amount?'to ri^quiring bar^exkttt-’
; iners" (who work, for nom in^
I - only) to counsel with bach failed a]
: eant,.compare his answers w itk 
« • answers,.and a rg u e  points-of.. lawi 
! proximately 272 applicants- (out. of 

failed the exam the last time-it 
-^ministered , __

Patricia Roberts Harris, who h?^ . 
served both as dean of' Howard’S law j 
school and as a member of the bafek-^' 

said -she would
____  __  vexamimng'- as-

signmeht if sbe b ad  boen r e t i r e d  to 
counsel with every 'applicant w h o ''(  
failed the bar.' .■ " ̂  . : * ■ ^

, , She would agree with one nonlawyer 
i who said: “I t  certmnly :woald bO 

ful if the bar-examiners expIamedMiusd?, 
which questions you- missed 
why; and even • more:, helpful . îi’'-'thep' 
promised to ask exactly: the same qiies»i  ̂
tionsi next time around. :It wouldn’U  
take a  lot of tha|; before I  could pass*' 
the bar myself.”

(In an earlier coluinnv I  erroneously.*: 
■'-reported that Archie'Richardsoh, 

uate of Catholic University Lav 
has failed his bar '^amihationv I 
have said that . Richaidsonr has . yet 
take the bar exam.)  ̂ . . / >



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UNITED STATES DISTKICT COURT 

DISTRICT OF SOUTH CAROLINA 
CHARLESTON DIVISION

DAVID RICHARDSON, PATRICIA KING, 
PATRICK KELLY and HIRAM SPAIN,

Plaintiffs

J. MEANS MCFADDEN, MORRIS D. ROSEN, 
C. V!. F. SPENCER, ROBERT D. 
SCiiUMPERT, DAVID L. FREEMAN and' 
ALBERT L, JAMES, JR;, individually 
and as members of the State Board 
of Law Examiners; and MISS FRANCES 
SMITH, Clerk of the Supreme Court' 
of South Carolina,

Defendants

Civil Action No. 72-121S

R__D £  R

O C T  18T8T3

7 > Z ^ r .

y-

This__is an action for declaratory and injunctive relief, 

brought- pursuant to 42 U.S .C.,^1981, et seq. , in which the plain­

tiffs, alleging violation of rights guaranteed them under the 

Equal Protection and Due Process Clauses of the L’n ' ted States 
Constitution, ask this court to declare as discriminatory and 

unconstitutional the practices by which the defendant members 

of the State Board of Law Examiners evaluate applicants for 

admission-to the Bar of the Supreme Court of South Carolina-.

This court refused to permit this litigation to be brought as a 

class action, and the four plaintiffs thas, sought an order for f

themselves that would admit them to the practice of law in this |

State without having passed the semi-anniaal bar examination whic'.: ^

;! is conducted by the aforementioned defendants for, and on b-’haj ■' >
' - ■„ ' 1 or, the Supreme Court of South Carolina, pursuant to the authoritv'

granted that Court by Section 56-97(b) of the 1962 Code of Lav:s j
of South. Carolina, as amended.



IL

The plaintiffs are all black and are graduates of 

several different law schools. Plaintiff Richardson graduated 

from Washington College of Law of American University in 1970, 

after having previously attended Howard University Law School; 

plaintiffs Kelly and Spain, graduated from Howard University Law 
School in 1966 and 1971, respectively; and plaintiff King 

graduated.from North Carolina Central University Law School in 

1969. These plaintiffs allege that the procedure for admitting 

applicants to practice law in South Carolina is constitutionally 

infirm because: (1) the State^Board of Law Examiners purposely 

discriminates against blacks in grading bar examination papers; 

(2) the bar examination itself inherently discriminates against 

ji blacks whose segregated educational background severely restricts 
: them in competing with white^applicants who take the same 

examination; (3) a greatly disproportionate number of blacks fail 
the bar examination and no demonstrative evidence has been 

produced that ttie bar examination as given by the defendant Law 

Examiners is an appropriate vehicle to test the skills required 

of a practicing attorney; (4) there is no established procedure 
for an applicant who fails the bar examination to seek review 

of the grading of his examination paper or, alternatively, to 

||request a hearing at which time such applicant might present 
Ijhimself to the Board of Law Examiners for further evaluation of 

•jhis background, which evaluation might reflect possession of 

jjthe skills requisite to establishing minimal competence to 
ijpractice law.

ij ■ The plaintiffs' first, contention that the defendant
i|Law Examiners purposely discriminate .against blacks in the 

jjgrading of the bar examination papers is completely unfounded and 

|utrerly without .merit. The evidence adduced in the instant case 

■jlucidly demonstrates that the examination papers are identified 

'iexclusively by number and that nc Xaw examiner is privy to the 

'*•‘1 ily Mw* .-icp 1 i »-.im t who.’.«* p/ipf-r lu' . 'I’lu'



only person who possesses knowledge of the actual identity of 

a particular applicant is the defendant. Miss Frances Smith, 

who is the Clerk of the Supreme Court of South Carolina. The 

list matching the name of an applicant with the identification 

number used on that applicant's examination paper remains in the 

exclusive, possession and control of Miss Smith and no law 

examiner ever views this list or has knowledge of the information 
contained thereon. Plaintiffs, in a further effort to prove 

intentional discrimination against them, unsuccessfully attempted 

to demonstrate that the style of writing of blacks is indigenous 

to that class to the end that a law examiner can easily recognize 

the paper of a black examinee and discriminate in grading without 

having prior knowledge tha t .such examinee was black. From the 

evidence submitted, it is crystal clear to this court that the 

Board of Law Examiners in no way has discriminated against the 

plaintiffs in particular, or blacks in g eneral, and the grading 

of examination papers by number rather than name should provide 

adequate assurance to the plaintiffs that the bar examination is 

fairly and properly administered. The record in this case 
unequivocably demonstrates a fact long known by this court,

! to-wit, that the individual members o f ;the Board of Law Examiners 

are successful attorneys possessed of the highest character and 
integrity who, at the request of the Supreme Court of this State, ■ 

have undertaken an awesome task in agreeing to devote the 

required time semi-annually to .fairly,_.l3^p.are,,an4^^ impartially . .. 
gfade'several'.hundred'bar examination'p^e’rs'.'' ■ 

i! Reviewing plaintiffs' second csntention that the bar
jj examination inherently discriminates aga.inst blacks, the courts 

;! have uniformly held that a state.may, within constitutional bounds 
j| require that applicants for admission to the bar meet pre- 

Ij requisites "which have a rational connection with the applicant's 
j| 'ir '-.ii'acilv I'l pr.tr 1 ! Cl' l.iw." Brfiw.ire v_. Board of Fai''
' fx.iiii i iM-1 II.::. (riliV); la-r, W i l - r v . Comiiiitlri' oil



Character and Fitness, 373 U.S. 96 (1963); Konigsberg v. State

Bar of California, ,353 U.S'. 252 (1957); Halliman v. Committee

of Bar Examiners, 65 Ca.(2) *tU7, 55 Cal.Rptr. 228 , 421 P.(2) 76

(1966). The hypothetical question,essay type examination given 

in South Carolina has been approved in a number of jurisdictions. 

See, Chaney v, California, 386 F.(2) 962, 964; Feldman v. Arkansas

Board of Law Examiners, 438 F.(2) 699; Tyler v. Vickery,

C/A #15866, (N.D.Ga. 1972); Parrish v. Board of Bar Examiners of 

Alabama State Bar, C/A #3809-N, (M.D.'Ala. 1973). In the opinion 

of this court, from the testimony presented here, the bar 

examination administered in South Carolina is a proper method by 
which well qualified bar examiners.determine whether a particular 

examinee exhibits the necessary knowledge in each of the required 

subjects to permit such examinee to competently practice law in 

this state. The type of examination used by the Board of Law 

Examiners has universally been recognized and applied in both 

bar examinations and law schools as the most utilitarian method 

of testing the ability of a particular examinee to perceive and 

apply abstract legal principles to given factual situations.
Viewed in this light, it is manifest that the South Carolina bar 
examination as presently administered has a rational connection 

with any applicant's fitness or capacity to competently practice 

1]̂ this state. Whxle it is true thait no one can legitimately 

contend that the bar examination is an ajifallible "success meter'' 

■'the :rationa'l/'rdl'ationship..'between . stlcM eiainihatipns -and Competence: 

to practice law is recognized in forty-seven (47) of the fifty (50 

states, and this court rejects the plaintiffs' contention that 

the bar examination in South Carolina is inherently discriminator;, 

When a procedure .has been developed by a S'tate to protect the 
liberty and property pf its. citizenry, a court should be especial! 

lec-ry of reconstructing such procedure, unless evidence adduced

regarding i iie shme compels the conclusion of unfairness and
a i ... I i in i n.1 M  . .11 , I ' ( .) i II I V. 11' ■ I p iw n i 'l l l  In 'I 'l ' .



The plaintiffs next argue that a disproportionate number 

of blacks are unsuccessful when taking the bar examination and 

this fact creates a presumption of discrimination, which presumpti 

is binding on this court unless the defendants offer a satisfactor;. 

legal explanation to dispel such presumption. Brown V.' Gaston 
County Dyeing Hachine Co., 457 F.(2) 1377 (4 Cir. 1972). The 

evidence presented here on this issue by the. defendants has, in 

this court's opinion, overcome the presumption of discrimination 

in that it appears that' a signiflicant percentage of the blacks 

who have failed the examination have attended one particular 

law school whose academic stahdards for admission are admittedly 
less stringent than the standards of virtually all other 

accredited law schools. This particular school, Howard University 

Law School, has as its laudible purpose the assimilation of as 

many black attorneys as possible into the legal profession in 
the various statesof the nation, and, in order to accomplish 

this result, Howard University Law School has admitted many high
i

risk students. The uncontradicted evidence reveals that Howard j 

University law graduates on a nationwide basis do not fare nearly i 

as well on state bar examinations as do graduates of other j
accredited law schools, and the proven experience in South Carolina 

too, has been that black graduates of the University of South j

Carolina Law School attain a much higher rate of passage on bar .!

examinations than do graduates of Howard University. In reaching . 

this . co-ncuusiop.^, ,thrŝ . court^.,does. not intend cj;;itici5m ̂.of Reward...
University 'Law 'Sc'h'ooT'v for -that’ school' s '•efforts to'irtdrease - the’

|| number of .qualified, black attorneys admitted. to practice througheut 

I the United States.deserves praise, not opprobrium. Thxs court :  ̂

i|recognizes, .particularly, in South. Carolina, that the black attor.ne;.. 

jjhas been of special and immeasurable value in solving community .; 
prohl e m . s ‘ advancing the causes of minority groups., and promoting ... 

I I .ui'|u i I i I V l>elv;een the mce;;.. On Uie one h.ind, this court 
undfi',',t'lnds tlie ru-ed and value of linving competent l-)l.ick attorneys ■



admitlod to practice in this state, but, on the other hand, this 

court recognizes that the State of South Carolina must establish 
reasonable standards equally applicable to all who seek admission 

to the practice of law in this state. The plaintiffs themselves 
testified, as did one of the plaintiffs' witnesses, himself a 
truly outstanding black attorney, that the black examinees 

neither desired, nor were they entitled to, special consideration, 
but that such examinees desired only to be graded on an equal basi 

with all other examinees. The fact that the standards used by 

the Board of Law Examiners may work a disproportionate hardship 

on black examinees does not establish discrimination against 

blacks in general, or the plaintiffs' in particular, unless such 

standards are arbitrary, or do not meet the rational relation­

ship test, or are applied differently to blacks than to whites. 

(See, Schware, supray and Tyler, sup-ra. 1 Since a reasonable 

explanation has been advanced by the defendants for the fact 

that a greater percentage of whites than blacks pass the bar , 

examination, and since there is no evidence liere that the stan- ■ 

dards used by the Board of Law Examiners are arbitrary, or that 
such standards afe unfairly applied to blacks, the court having 

previously determined that a rational relationship does exist 

between the bar examination as given and any applicant's competence 
to practice law in South Carolina, this court is of the opinion 

that the disproportionate rate of failure of black bar examinees ‘ 
is not the result of any unconstitutional infirmity, either 

 ̂inherent ot purposeful,^ in^ fhe^bar ̂ examination. , .
 ̂'P' i:rihalrylf'plaihtiffs assail ’'fhe ’ faflure of the"bdr' ' ■ 

I^admission procedurq^to provide, an .unsuccessful examinee the , 

opportunity to have his examination paper,reviewed ,to ascertain 
the reasons', for ,his failure, and t.hey attaeje, too,, the lack .of 

an established plan for such an examinee to meet with the Board - 

of Law ,!h:amjnerr, to have l u s  legal qualificat-iour, further evaluatec 
,’h.- .il.-,. J',. .■ ..I pr. in bv lh<- ]. 1 ,i I !i I i 1

ti, deprov.- umiu.-c.esstul ex.imineos of due i>ro.'('Ss r. I luvj. homo



courts have lield that there is no constitutional right to an 

adversary review of bar examinations. Ex parte R oss, 196 Ga. U99, 

26 S.E.C2) 880, 197 Ga. 257, 28 S.E.(2) 925 (19UU); Hiotec v.
Nair, 4 Conn.Cir. 313, 231 A. (2.) 95; I-n..c.e ,HQn.h.a,h.aiii-, 126 Ver. 53,

I s h . supra222 A. ( 2) 66, 126 Ver. 193_, 225 A. (2> 387 , cited in Parr 
The establishment of such a review procedure rests within the 

inherent authority of the Supreme Court of South Carolina. 

1962 Code of Laws of South Carolina, Section 56-96. Ex parte

Garland, 4 Wall. 333, 18 L.Ed. 366 (1867); Brvdoniack v. State

Bar, 208 Cal. 434, 281 P. 1018 (1929);. Rosenthal v. State Bar 

Examining Committee, 116 Conn. 409, 165 A. 211 (1933); Payne v .

State, 52 Ga.App. 425, 183 S.E. 638 (1936); Re Applicants for

License, 143 N.C. 1, 55 S.E. 635 (1906). Since the.authority to
establish a post-examination review procedure is vestei^ in the • 

Supreme Court of South Carolina, and the plaintiffs here admittedly: 

have failed to seek relief in- that Court,, it would not, in this j 

court's opinion, be appropriate to decida the due process issue 

here presented until the Supreme Court of South Carolina has been 

given an opportunity to'review the same. The principle of comity,. ; 

so vital to the maintenance of a  stable federal-state judicial 

relationship, demands that this court abstain from further action 
in this case at the present time. Lynch v . Snepp, 472 F.(2) 769 
(4 Cir. 1973). This court has complete confidence that the Supreme 

Court of South Carolina will offer the plaintiffs a fair and equi­
table forum in which they can advance their due process claim, if

ijthey be so advised to raise such issue in that court.

- -Eased on the..foregoing,- at Is j -
|! ORDERED, that the due process issue herein presented by

|[the plaintiffs be, and -the same hereby is, dismissed withou-t 

l^te jud'ice'V 'and the '’plaintif fs' are hereby' g'ivhn the 'right to mOVs '" 

ilthis eo'ur't to' reins'tate this case for final determination of this 

ue process isSue after the plaintiffs have exhausted such pro-

,ir, tlio Su]n-’cmc Court of South Carolina snay make available



IT IS FURTHER ORDERED, that, except as above set forth, 

the complaint herein is'dlsmisse'd* idfflt p'f'g'j'udTce.

IT IS FURTHER,ORDERED, that each party pay its own costs 
in this case.

Charleston, South Carolina 
October 18 , 1973

. , ;.X-:..., ,

UNITED STATES DISTR'rgr'JUDGE

...

y -



UNITED STATES DISTRICT COURT 

DISTRICT OF SOUril C/iROLIHA 

' ■ ■ • ■ CHARLESTON DIVISION '

DAVID RICHARDSON, et al., etc.

Plaintiffs,

Civil Action No. 72-1219

STATE BOARD OF LAW EXAMINERS, eU al., )
>

Defendants. )

FINDINGS OF FACT-

1. . Plaintiffs are four black graduates of law schools accredited by the 

American Association of Law Schools and the American Bar Association, Plaintiff 

Hiram Spain graduated from Howard University Law School in 1971. ,Plaintiff . 

Patrick E.Kelly graduated from Howard in 1966. Plaintiff,David B. Richardson 

graduated from the Washington College of Law of American University in 1970. 

plaintiff Patricia E. King gradi^ated from North Carojlina Central University

Law School in 1969. . ' ' '

2. Plaintiff Spain is employed in the Administrative Offices of the ■

funding recommendations onGovernor of South Carolina, with responsibility for 

rural development projects totalling thousands of dollars, each year. ' The 

position is on a program with total funding authority for approximately three 

quarters of a million dollars annually. Since graduation frtom. the Howard 

University Law School, he also held a Reginald Heber Smith Fellowship at the 

Legal Services program sponsored by the Office, of Economic Opportunity (O.E.O.) 

in Greenville, S. C,, in which he did legal work under the supervision of the 

.program director. While still in law school, he did legal investigative’"work 

and had admi m'frat? ve res ponsibi li tics in the Con.-̂ uint-r Ttilvi.n'eLion Center an 

O.E.O. program operated under the auspices of Howard University for the promotion 

of protection of the legal rights of, consu_mers. He had,a distinguished'academic 

record, both in.lav; school, where he graduated 20th in a class of 111, and in 

undergraduate work, where he graduated high in his class and first, in his. class 

in the School of Business Administration at the South Carolina State College.

: 1

II



A n  ail o tni i iple  oi: b i s  ho ovirned an ."A" t o r c h i n g  c e r t i f i c a t e  w i t h  h i n

p e r f o r m a n c e  on t h e  N a t i o n a l  T e a c h e r s  E x a m i n a t i o n  b e f o r e  he a t t e n d e d  law s c h o o l .
i - ■ '

3. 'Plaintiff Richardson is employed by the South Carolina Commission 

for FarrrWorhers, an O.E.O. - funded project fot the benefit of migrant workers.

He has also^iield a Reginald Ueber Smith Fellowship at the Legal Services program 

in Charleston, South Carolina, where he has fulfilled virtually all the legal 

duties of an attorney in general practice in. South Carolina, under the supervision 

of Cleveland Stevens, director of the program. Nr. Stevens testified without 

contradiction that Plaintiff Richardson performed these- duties adequately and 

competently, and that his judgment as a supervisor was that Hr. Richardson was 

quaiiiied.to enter the practice of law in South Carolina. The Court finds that 

his supervisor‘sjudgment is that Plaintiff Richardson is competent to be admitted 

to the Bar of South Carolina. He further testified that Mr. Richardson*s written 

work, 'in finished form, was of high quality and free from grammatical errors. 

Plaintiff Richardson also previously worked as a legal advisor with the 

American Federation of Labor - Congress of Industrial Organizations, where his. 

duties included keeping abreast of decisions of the National Labor Relations 

Board and other tribunals in labor law,- and disseminating information about and 

interpretations of these decisions for use by field organizers. He had extensive 

experience-while in law school in practical legal practice, both in court under

a supervised practice program, and out of court in a Legal Aid Clinic program.

4. Plaintiff Patrick E. Kelly is employed by the,federal government in 

the District of Columbia. He has previously held positions as Assistant Counsel 

to the District of Columbia Committee of the House of Representatives, and as 

legal advisor and secretary to the District of Columbia Board of Zoning'Appeals. 

From the reports and opinions introduced in evidence as Plaintiff Kelly's work • 

product in the above jobs (Pl.Exh. 3~7, 9), the Court finds that Mr. Kelly

is perfectly capable of discussing and articulating legal concepts in acceptable 

grammar and legal terminology, in the context of the actual work situations in 

wfiich he testified these were prepared. Earlier, he had held positions with the 

House of Representatives, and as a tax specialist for the Internal Revenue 

Service. Throughout his years of honorable service in the United States Armv, 

he spent most of his time working in Legal Aid and in administration of legal 

matters for his command, botli in Alabama and in Korea. The Court finds from



docunionts introduced intO'evldeuce'that Plaintiff Kelly was commended l>y his 

superiors for the manner in which he discharged his legal duties in these commands 

(Pl.Exh. 1 & 2). , .

5. , P^laintiff Patricia E. King is admitted to the Bar of the State of

North Carolina and is presently engaged in the practice of law in association 

with Charles V. Bell in Charlotte, North Carolina, She has been so engaged 

since 1971. Her experience covers the general practice of law, including both 

civil and criminal matters and including appeals in the state appellate courts 

of North Carolina. Her associate, Charles V. Bell, testified that he supervised 

her work when she began practice two years ago, but that she now works largely 

on her own. As her closest legal associate, he.evaluates her as an able and 

competent attorney who professionally handles her clients' affairs. The Court 

also takes judicial notice of an action brought by Plaintiff King challenging the 

constitutionality of the durational residency requirement (and its application 

to her) for taking the licensing examination for funeral directors in South 

.Carolina; the records of the Court reflect that Miss King is participating in 

that action pro se, and obtained a temporary restraining order in that action 

to enable her to take the examination. The Court finds that she has demonstrated 

many of the qualities necessary for an attorney practicing in South Carolina.

All Plaintiffs attended public elementary and secondary schools in 

South Carolina. All these schools were racially segrated by state law and 

practice throughout the period of Plaintiffs' attendance. With the exception 

of Plaintiff Richardson, who graduated from the predominantly white Washington. 

College of Law of the American University, all Plaintiffs spent their entire 

educational careers in predominantly black schools. ' •

7. -The Court finds that economic difficulties that faced Plaintiffs

Richardson and Spain, in large part because of the heritage of their race, 

prevented them from attending lav school immediately after graduation from 

college. Had they not faced these obstacles, the Court finds that Plaintiff 

Spain could have graduated from law school in 1964, and Plaintiff Richardson 

in 196g. . ,

Plaintiffs have met all qualifications for admission to the Bar 

in South Carolina except h.iving been certified by Pofendant members of the



rsn.nr-ri o f  L.r.,- E::air,ir.eITS a s  p a s s in g  th e  B ar E x o in in ac io n  s e t  by  tliem .

Including Che Plaintiffs, there have been a total of twenty (20) 

black applicants for admission to the South Carolina liar who have applied from 

19o3 to 1973, have taken the examination, but have never been admitted. Five 

of these are graduates of the South Carolina State College Law School, who 

took the examination only before 1967 (stipulated Requests for Admissions,

Para. 21.), I'he others have all taken the examination one or more times since 
1969.

agreed by witnesses for both parties that access to a racially 

integrated bar and system of,justice is important to the public interest. 

Further, the- role that black attorneys have played in the leadership of their 

community has been historically an important one. Finally, the Court finds as 

a fact that the great changes in social and economic relations betrreen the races 

that the State of South Carolina and the naicion as a whole have experienced in - 

the past twenty-five (25) years could not have been achieved without the ’ ^

tremendous contribution of black attorneys to the litigation necessary to bring 

about these changes. In South Carolina, for example, black attorneys have led 

the way in attacking racial discrimination in schools, in grand and petit juries, 

in election laws, in public accomodations, and in employment.

9. ■ The Court finds that the communities in which Plaintiffs Spain, Kelly

ami King wish to practice law are served at present by black attorneys who 

are far too few to serve the needs of the black community. In-Spartanburg, 

Plaintiff Spain's intended community, there is only one black attorney for a • \  

population that is over twenty (207.) per cent black. In Chester, Plaintiff 

King's home, there are no black attorneys. In Horry County, of which Plaintiff 

Kelly IS native, only two black attorneys have any practice.

Court finds that racial discrimination has pervaded the history 

of the Bar in South Carolina, as most ot.her institutions in the State. For 

decades Che "diploma privilege" enacted by the State legislature In 1910 

enabled graduates of the University of South Carolina Law School (limited to 

whites by state .law and practice) on motion of the Dean, thereby assuring that 

most white applicants would be admitted without Bar Examination, while all 

black applicants would face the Examin.ation os a screening device. For years 

applicants for admission to the Bar in SouU, Carolina wore permitted to qualifv



for ion 'oy reouiuj^ law under supervision o£ a practlcinj' nr-tomey.

Althoui’ij the Static Bar Association formally opposed these practices in 1940,

-the diploma privilege was not abolished until 1950, when the first class of 

graduates of the all“bie?ck South Carolina State College had benefited from 

it; and the reading privilege was not abolished until 1957, just after a black 

applicant who qualified for the examination by reading law had been, admitted. 

The Court finds from these circumstances, unrebutted by any evidence presented 

by the Defendants, that the exercise .of these privileges by black applicants 

was a significant contributing factor in the abolition of these privileges and 

the increasing of the strengency of screeening applicants' for admission. This 

finding is supported by the coincidence between the application of a black 

attorney for admission by reciprocity, and the subsequent abolition of the 

reciprocity privilege. The explanation that South Carolina is becoming a 

retirement center for attorneys is not persuasive to the Court. •

11. .The Court also finds from the evidence that the organized bar through­

out South Carolina excluded black attorneys from equal participation until the 

late 1960‘s. The-Spartanburg County Bar in the 1950's had separate lists for 

social functions that excluded the lone black member of the Bar in that county. 

The Richland County Bar was so recalcitrant that when the County Bar .Association 

voted to accept black members in 1965, a majority of attorneys in the county 

still tried to form a separate organization, exclusively white, to perform socia 

functions such as the entertainment of judges. -Black applicants, for membership 

in the State Bar Association were denied membership.

12. Applicants for admission to the South Carolina Bar have been required, 

since 1968, to submit a recent photograph with their applications. From these 

photographs, the race of the applicant can be determined, as it was determined 

by Defendants in preparing Answers to Plaintiffs’ Interrogations (Pl.ExhT 28),

13. Tha I.aw Kxamriners v.f’no administer the Bar Examination are puysicaiiy 

present during parts of the examination procedure. The Court finds from the 

testimony that the Examiners are able to observe the number of black applicants 

at each examination (Pl.Exh. 43, p. 31).

14. Three identical applicant numbers (116, 117, and 138) were assigned 

to black applicants in both June, 1971, and July, 1972 . The Court finds that



Ail applicants with these three numbers failed each, examination. One of these 

numbers (116) assigned to Plaintiff Richardson in July, 1972, has been assigned 

to failing applicants for four co.nsecutive examinations, beginning June, 1969.

Several witnesses on deposition attempted to sort examination papers 

by race on the basis of identifying characteristics of language useage. The 

results did not demonstrate that race could reliably be determined by lay 

persons in this manner. However, Plaintiff Spain and witness Toal, a white 

professor at the University of South Carolina Law School did demonstrate a 

remarkable ability to identify papers of failed applicants as having 

characceristics of black language useage, and to identify papers of passed 

applicants as lacking^ these characteristics. O'f papers these witnesses felt 

reasonably'sure of, the Court finds that Plaintiff Spain matched black with 

failing and white with passing in 847,-of cases, and that witness Toal made 

this matching in 89% of cases (Pl.Exh. & 56, Def.Exh. 24). The Court 

further finds that this evidence demonstrates that language characteristics 

identified as "Black" could be used by the Law Examiners to classify papers 

as failing.

16. The evidence demonstrates that the Bar Examination exclude^ more

black applicants than white applicants. Since June, 1969, when the Board of 

Law Examiners assumed the composition it had at the beginning of this action, 

95a of all white applicants have ultimately been admitted to the Ear. Only 

about 2a of xjhite applicacns have taken the exa.minacion more than once and 

not been admitted (Pl.Exh. 28-A). During that same period, only thirteen of 

twenty-eight black applicants have gained admission (Stipulated Requests for 

Admissions, Para. 26, 27). Thirty-two (327.) per cent of all these black 

applicants have taken the examination more than once without gaining admission.

of black applicants was at least informally brought to their attention prior to 

the institution of this action. (Pl.Exh.39, pp. 94-98; Pl.Exh. 40, pp. 20-23; 

Pl.E_xh;41, pp. -72-73; Pl.Exh.42, p. 29; Pl.Exh. 43, p. 27). Several testified 

that the Examiners had informally discussed these failure rates-at one or more 

of their meetings, but that they had concluded tlicre was no action that the



Bo.'trd could r.nkc or should take. (PI.hxh.39, pp. 94-98; PKhyh.AI, pp. 72 73). 

Defendant Spencer frankly testified at trial that adverse impact on a racial 

group among applicants did not place any special duty on the Board of Law 

Examiners to study their examination procedures. The Court finds that the 

Law Examiners do not believe they have any duty to attempt to minimize adverse 

impact of their examination on minority group applicants, and do not recognize • 

that there is any way that this might be done.

IS? I’he Court finds that the evidence at trial established that the Law

Examiners do. not understand many of their own practices and procedures. All 

Examiners referred the Court to Hr. HcFadden, the Charijnan, for an explanation 

of the use of the Multi-State Bar Examination scores by Che Board. But 

Mr. HcFadden did not fully understand the method by which the "equivalent"

HBE scores were computed by Che National Conference of Bar Examiners. (Even 

the Director of Testing for the NCBE did not readily recognize the fact that 

in South Carolina, the selection of the passing score for the essay examination 

administered by the Law Examiners determined Che passing score on the MBS.)

The Court finds that the Board has effectively, delegated to Che NCBE an important 

portion of its responsibilities for determining legal competence, and yet the 

Board does not comprehend the manner in which this delegated authority is 

e.xercised. j ' , _

19. Further, at least one Examiner testified that he did not believe

that different Examiners had different standards in'grading, or consistently 

failed larger numbers of applicants. (Pl.Exh. 41, pp. 69-72).' However, 

the Court finds from Che unrebutted testimony of Plaintiffs' witness Dr. Gerald 

Whit.lock that the Examiners consistently give different average scores 

(Pl.Exh. 37, Table I), and consistently fail different numbers of applicants, 

even when examining on the same subject matters. For example, Defendant 

McFadden has failed 297o (1972) and 267, (1970) when exar/tning on Federal and 

State Procedure. Defendant SchumperC, v;ho testifiedjthaC in 1972 his 

Constitutional Law answers from applicants were good,' but his conflicts answers 

were terrible (P.l.Exh. 43, p. 24), failed 25Z ou Conflicts and Constitutional 

Law. In contrast. Defendants Rosen (1969) and James -(1971) failed only 137, 

when cxatiiining on Federal and State Procedure and Conflicts. The Court finds



tliat Che Examiners do not ■ unclerstand their own differences of standards.

20. In addition, Che Court finds that the Examiners have generally 

increased Che difficulty of passing the Bar Examination over the years, 

particularly since 1969 when the effect on black applicants has been especially 

severe. From the testimony of Mr. Rosen (Pl.Exh. 41, pp. 90-91) and Mr.

Spencer, (Pl.Exh. 42, p. 23), the quality of papers has at least remained the 

same or improved over the years. Yet by the standard 'of graduates of the 

University of South Carolina Law School, passing the examination has recently 

become more difficult. In 1958 - 1962, 236 of 248 graduates, or 95%, passed 

the examination on the first attempt (A.B.A. Evaluation Report, p. 11). In 

1963 - February 1967, only 7 of 322 .graduates eVer failed the examination, 

about a 98% pass rate_ (Stipulated Requests for Admissions, Para. 20 and 22).

In 1968 - 1972, however, only 586 of 637, or 92% of graduates who took the 

examination passed it on their first attempt^(Stipulated Requests for Admissions, 

Para. 23). According to cross-examination of Mr. Statler, one of Defendant’s 

expert witnesses, the difference between the 1963-67 pass rate and the 1968-72 

pass rate is statistically significant. The Court further finds’ that this 

statistically significant decline in the rate of passing of U.S.C. law 

graduates came at a time when the general verbal ability of U.S.C. graduates, 

as measured by the Law School Admissions Test, was improving. (Affidavit of 

Professor Eldon Wedlock.) ' . • .

21. The essay portion of the Bar Examination includes twelve subjects: 

Business Associations, Uniform Commercial Code, S. C. Code Pleading, Federal 

Practice, Wills and Decedents' Estates, Constitutional Law, Conflicts of Laws, 

Equity, Insurance, Personal Property, Legal Ethics, and Trusts. The Court 

finds from the testimony of Defendants' witness. Professor George Neff Stevens, 

that the latter half of these subjects are comparatively unimportant, and would 

bo better omitted from the Bar Examination. The examination also includes the 

multiple-choice Multi-State Bar Examination, prepared by Che National Conference 

of Bar Examiners in consultation with the Educational Testing Service, on fine 

subjects: Contracts, Torts, Criminal Law, Evidence, and Real Property.

22. The Law Examiners divide the essay subjects among themselves in the 

following groups: (1) Equity and Insurance; (2) Conflicts .and Constitution.-. 1



i.-'iw; (3) E-jr,inoss AbSociaLions and Efhlcs; (A) .Unirorm Caminerciai

Code and Personal Property; (5) Trusts and Wills and Decedents' Estates; 

and (6) S. C. Code Pleading and Federal Practice (Pl.Exh. 29, p. le).

23. The Examiners, rotate subject matters each year, so that each Examiner

will examine in all essay subjects over about a six-year period, lack of 

practice in a subject does not disqualify an examiner from examining in it.

Examiners work completely as individuals \lhen they prepare their 

examinations. They do not jointly discuss the contents of each of the subject 

areas. They individually select or develop questions. They individually 

prepare expected or "model" answers. They individually determine how many 

points will be allotted for each answer. They individually determine and 

apply their own standards in grading the papers submitted’

25. ‘^From the viewpoint of professionals in the.field of tests and 

measurement, two important characteristics of a test,of ability are reliability 

and validity. Reliability is a statistical measure pf the consistency of a 

test with itself, i.e., how consistently it measures whatever it is it is 

measuring. Validity refers to what the test is actually measuring.

26. There was agreement among most of the expert witnesses that when

a test is used for important judgments about individual persons, a reliability 

of 0.80, or 807. consistency of the test with itself,: is the minimu.m acceptable 

value (Cf.Pl.Exh. 54, pp. 70-71, Dr. Bernreuter). The only expert who would 

not agree with this was Mr. Stabler, who was so evasive on this point that the 

Court cannot place too much credence on his opinion, in light of the agreement 

among the other three. '

2^* According to Che testimony of Plaintiffs' witness Dr. Whitlock, and

Defend.ants' witness Mr. Statlor, the South Carolina Bar Examination has 

consistently in the summer exams had a reliability of !less than 0.80 (Pl'Exh.

37, Table II). The i-ecr,vd l.s not clear about the reliability of the essay 

combined with the Multi-State Bar Examination. Defendants' experts testified 

that it would normally be greater than the reliability of cither part, and 

hence greater than 0.80. Yet Mr. Stabler admitted on cross-examination that 

if the two parts had the same type of items, they would have an overall 

reliability, h.ased on the relation between tlie two score.s, of less than O.SO.



He nlso ticc tii I j eu Lnac }ie could offer no alternative mctiiod of computing the 

ovcraJl re 1 i aiii ii ty. Tiiercfore, the Court finds th’at the summer examinations 

for the years 1.970, 1971, and 1972 had a roUability, or consistency of 

measurement, less tl?an the professionally accepted value for any test that, 

like a Bar/Examination, is used for important judgments about .individuals.

28. The Standards for Tests established by the American Psychological 

Association and the Guidelines of the Equal Errploymejit Opportunity Commission,

29 C.F.R. §1607.5 et seq., recognize three types of validation of tests of 

abilities for use in occupational selection: (1) criterion-related validity;

(2) content validity; and (3) construct validity.

29. Criterion-related validity is determined by developing one or more 

reliable and relevant measures of performance on the job and comparing ratings 

on these measures to Scores on the test. The comparison can either be with a 

test score made at the same time as the performance rating (concurrent validity)., 

Professional opinion favors this method of validation.

30. Content validity is determined by comparing the behaviors required 

for the test with a systematic sampling of the behaviors actually required 

on the job. Such a study requires judgment by more than one person of the 

concent of the job, usually in the form of a job analysis.

31* -Construct validity is used primarily in personality psychology to

determine whether a test is m.easuring some ’’trait" or- "ability." All experts 

agreed that construct validity is irrelevant to the validation’of a Bar 

Examination, and the Court so finds. ' ■ . . .

32. ■Plaintiffs' expert witnesses, Dr. Philip Ash and Dr, Gerald

Whitlock, both psychologists with decades of experience in occupational 

testing, proposed a number of methods by which a 'criterion of professional 

performance of an attorney could be determined. Principal methods proposed 

W’ere (i) a method of "paired comparisons," in vrhich olecr attornevs would 

compare a number of young attorneys on the question, "which among each pair of 

young attorneys is a better attorney;" and (2) a checklist approach, referred 

to as a "performance specimen" or "behavioral" checklist, in which older 

associates and supervisors of young attorneys would provide an overall rating 

of performance on perhaps a seven-point scale, and then would also check x ĥich



of a list: of several dozen bcliavioji.:,, lioLli effucLivc and ineffective, the 

supervisor had seen the younger attorney perform difrin;; a specified time 

period. (See Pl.Exh.35 for examples.)

■ 33. . , . . There was some dispute in the evidence about'the feasibility of such

a study. .The Defendants stiputlated, however, that older attorneys would be 

able to evaluate younger attorneys in their offices, and that attorneys 

commonly form opinions of the proficiency of other attorneys whom they observe 

in practice. Ashley Thrift, Director of Placement at the University of South 

Carolina Law School, testified that a survey of recent graduates indicated 

that a minimum of 507o of a class of 139 in 1972 were practicing law with older 

attorneys, the overwhelming majority of them in South Carolina, who could be 

rated on checklists (Pl.Exh,13), Drs. Whitlock and Ash testified that it 

would be possible to combine more than one year's admittees for a study. All 

experts agreed that 50 persons would be sufficient for a proper study. Defendants' 

expert witness. Dr. Robert G. Eernreuter, conceded that a criterion-related 

validity study was feasible, and the Court so finds. Defendants have made no

■ effort to conduct such a criterion-related validity,'study of the Bar Examination.
I ‘ .

33a. Criterion-related validity is the method of validation appropriate

to the purpose of the Bar Examination as explained by Defendants. Defendant 

Mctadderi testified on deposition that the purpose ô f the examination is to 

determine whether an applicant has "a sufficient general knowledge of 

fundamental law so that he could handle business for clients without ruining 

them and botching up their cases or their business, . . (Pi.Exh.39, p, 32).

The other Law Examiners generally concurred in this descriotion of their 

purpose. (Pl.Exh.40, p. 10, Pl.Exh.42, pp. 8 -9; Pl.Exh.43, p. 34; Pl.Exh.44, 

pp. 11-12.) As the ‘Standards for Tests published by the American Psychological 

Association.makes clear, when it is desired to know how a person will perform 

on a task, the appropriate method of validation is predictive, criterion-related 

validity, with a measure of performance as the criterion (Cf.Pi.Exh.33).

34. The Court also finds tliaC Defendants have not established content

validity of the. examination by accepted professional testing standards. All 

expert witnesses agreed thau the standard method of evaluating the content 

validity of an occupational test is to compile a more or less thorough analysis 

of the tasks and activities actually required on the job, and to compare the



tachs and nctiviCies required on the job, and to romparo-Che tasUc and activitie 

required on the test to those required on the job.. iMthough Defendants' expert 

witness Stabler testified that he had the training and time to develop such an 

analysis, he had not bepn asked to do so. None of the Law Examiners had ever 

discussed the actual tasks of a young attorney, nor reduced these to writing 

in any form. Joseph Covington, Director of Testing for the National Conference 

of Bar Examiners, also testified that no job analysis had ever been prepared 

for use in the construction of the Multi-State Bar Examination. Without some 

job analysis, evaluation of content validity cannot be made because there is 

no way to determine the relative importance of different.tasks and activities 

in the job. ' - , ' . . ■ ■

35. . Dr. Bernreuter, expert witness for the Defendants, did testify that

he believed the Bar Examination was shown to have content validity by the 

■correlation of Bar Exam scores with grades at the university of South Carolina 

Law School. He conceded on cross-examination, however, that this was a method 

of evaluation of "content validity" that he had never used before, and that ha 

had'never seen it in any published or unpublished study. Furthermore, Mr. 

Stabler, Defendant’s expert witness who had performed the statistical calcu­

lations on which Dr. Bernreuter based his opinion, testified that he was 

qualified'to evaluate content validity of the Bar Examination, but that he 

could not make an evaluation of content validity on the basis of the information 

available to him. The Court thus finds that the preponderance of the evidence 

even from Defendants' own witnesses, fails to establish the content validity of 

the Bar Examination.

35. The Court's conclusion as to the content validity of the examination

is also supported by the testimony of Dr. Whitlock that many of the behaviors 

described to him as effective practice of lav? were unrelated to the skills ‘ 

tested by the Bar Examination questions, which he had examined. Defendant 

KcFadden gave an example of two law students he knew whose success in practice 

was exactly the opposite of what would have been expected from their law 

school grades, llany Examiners testified to the importance of aspects of 

performance not directly tested (Pl.Exh. 39, pp. 83-84; Pl.Exh.39, pp. 82-93; 

Pl.Exh.40, p. 18; Pl.Exh.41, pp. 56-57; Pl.Exh.42, p. 25, Pl.Exh.43, p. 24).



Fnrhhcrn.or,., the cerrclatices hctweea ijeaJea a..u her haams scores that Pr.

Bernreuter relied upon for his novel inccrprctation,of content validity uere

characterised by Dr, Whitlock in his testimony as evidence of construct validity.

Both Dr. Bernreuter in^his desposition (Pl.Exh.54, pp. 14, 83) and Mr. Statler

in his testimony admitted that these correlations v;ere interpreted as evidence'

of an ability, which Mr. Statler conceded on recross examination to be a

'construct." The preponderance of the evidence, then, is that Dr. Bernreuter's

innovation is really in the name he gives to the type of validity, although

he joined all other experts in stating that construct validity was irrelevant

to evaluating the validity of the Bar Examination.

■ Although the Bar Examination has not been shown to be valid from a •

professional testing viewpoint, all experts testified that it may be valid.

Defendants have simply not followed accepted procedures to establish the

validity or npn-validity of the examination. In a less technical sense,

however, the Court finds that the test is definitely related to legal knowledge,

and therefore related to some extent to the job of an attorney, although it is

impossible to determine on this record what the degree of relation is, and whether
I .

better performance on the test really, predicts better perfor.mance in the 

profession. ' j

38. . -Applicants who are certified by Defendant^ as failing the Bar

■ Examination are never given any statement of reasons they-have failed, never 

given any opportunity to compare their papers to model answers or to minimum 

passing papers, never given their scores, never inform.ed in what areas they 

are allegedly weak. There has been no opportunity for review of the papers 

by any appeal process. Defendants McFadden, Freeman, and Spencer have no or 

few model answers to set ascertainable standards for their grading, or for any 

reviewing of their grading. (See Pl.Exh.40, p. 16; Pl’-E-xh. 16)' ' ^

39. Defendants have conceded that there were man; computational errors 

in the calculations performed by the Board of Law Examiners. 'The Court finds 

that ai, least one applicant was failed in which a computational error was 

involved. The .applicant's essay composite score \rould have been one point 

higher except for the error. Had the correct score been reported, he would 

have received an overall passing grade in the computation.s performed by the 

tICK on the July, 1972 gradc.s. (PI. Kxh. 28. p.3(,4 No. 52). .Since many of the



cOlilputCitiOns have dcqu destroyed, ic is inipossihlĉ  t'o Hcccrminc ■'.■;h2 trhcr 

other applicants, including the Plaintiffs, have been failed as a result of 

computational e.rrors .

Court fin^s that the hoard of Lav/ Examiners has not followed a 

consistent policy over the years in evaluating papers referred to by the 

Examiners as "borderline," The Examiners never reviewed the actual papers 

of borderline" cases, in contrast to the procedure of regarding referred to 

by Judge Robert Seiler, Defendants' witness who was a long-time Ear Examiner 

in Missouri, The examiners have only the scores on each section of the exam 

and, occasionally, some written comments by Hr. McFadden on Mr. James that 

generally characterize the paper without giving any specific information 

(these comments frequently refer only to the applicant's grammar and.language 

. useage). , (Pl.Exh. 47 48). Mr. Rosen testified on deposition and at trial

that his recollection was that if an applicant had an overall, average of 

"70" or "69 1/2" and passed three parts of the exam̂  ̂ he would pass the exam, 

unless he had a score for one Examiner around 60. (Pl.Exh.41, pp. 61-65),

Other examiners testified at trial that if a personjfailed three essay sections 

and the Multi-SCate Bar Exarrt', he would not pass. The record reflects, 

unfortunately, that the practice of the Bar Examiners, insofar as failing 

applicants who have not passed a given number of esSay sections, has been 

inconsistent and erratic. One applicant in July, 1972, (No. 2, Pl,Exh.2S 

p. 35b) failed three essay sections and the MBE, yet he was certified as 

passing the exam since he had an overall average of "70" (59 2/3) (Pl.Exh.28, - 

Appendix). On the other hand, .two Plaintiffs'had scores that by Hr. Rosen's 

standards should have been passing, yet they were failed. This happened to 

Plaintiff Spain in June, 1971 (No. 51, Pl.Exh.28, p. 42b), when he had an 

average of "71", and to Plaintiff Kelly in February, 1971 (No, 4, Pl.Exh.28, 

p. 46b), v.’hen ne nad an a'/e'agrr i»!: "70", and a higher average than the lowest 

passing score on that examination (No. 10). The inconsistency of application 

is apparent from comparing Plaintiff Spain's scores with those of applicant 

No. 128 in June, 1970, applicant No. 160 in July, 1971, and applicant No. 121 

in June, 1969. No. 128 had virtually the identical pattern of scores- to 

Plaintiff Spain, but he was passed (Pl.Exh,28, p. 51b). No. 160 in July, 1971



had a Liar pnttc] and an avcraj: f u U

No. 128 the year before,-yet he was failed (Pl.Exh.28, p. A5b); No. 12L in.

June, 1969, had an average on five parts of 70.36, and an "F" on Che sixth 

part, failed three parts in all, and yet passed (Pl.Exh.28, p. 56b), The 

Court finds chat the Board has presented no satisfactory explanatipn for 

these inconsistencies. , .

Al. The expert x-;itnesses for all parties agreed that there is a

substantial probability that a person who scores just below the score set 

for passing has a true score'on the test above passing. These probabilities 

can be expressed in terms of the standard error of measurement computed by 

Plaintiffs! witness Dr. Whitlock for each examination. The value was 

consistently about 2 points for each examination (Pl.Exh.37, Table III).

.An applicant scoring.within 1.645 standard errors of measurement (66.7 or 

better) of "70“ has at least a five (57o) per cent probability of having a 

true score of "70"'or better. An applicant‘'scoring more than 2.33 standard 

errors of measurement below "70'' (65.3 or below) on the other hand, has a 

probability of less than one in one hundred of having a true score of "70" 

or better. ' • • ‘ '

A2. All expert witnesses except Mr. Statler were critical of the method

by which the passing score was set for the examination. Dr. Whitlock testified 

that the method vas arbitrary and without psychometric i.e., testing justifi­

cation. The preferable method for setting a passing score proposed in the 

expert testimony was to take the score that predicts the lowest acceptable 

performance on a criterion measure of actual professional performance^ with 

some allowance for statistical errors of prediction. In the absence of a study 

of a criterion measure, Drs. Ash, Whitlock, and Bernreuter expressed a 

preference for setting a passing score by a number of units of the standard 

deviation* of the test scores from the man. Dr. Bernreuter thought that a 

"judgment" of the passing level should be used "only as a last resort." He 

himself proposed in Pennsylvania, as a statistically justifiable approach, 

using 2.5 standard deviations below the mean as the passing score because that

The standard deviation is a statistical measure of the dispersal of 
scores around the mean, or average, score on a test.



is, in his experience, the distance above the mean where the highest scores 

on ability tests arc usually found. . (This passing score vrould be about 65.)

Drs , Ash and Whitlock rocoramendod simi lar-approaches, resulting i.n suggested 

passing scores of 65 or 67, depending on the year (Pl.Exh.37, Table IV).

Mr. Statler testified, in contradiction to Defendants' other expert. Dr. 

Bernreuter, that setting a passing score by judgment was a preferable method for 

an essay examination. However, Hr. Statler conceded that there was no 

exercise of judgment of this sort in the manner in which Mr. McFadden and 

Mr, Schumpert (Pl.Exh.43, pp. 19“20) set their passing scores by simply 

raising the highest score to a predetermined score and all other papers the 

same amount. In addition, Mr, Rosen testified on deposition that he set his 

passing score by raising the scores an "arbitrary" number of points since 

"70" was not a 'taagic" figure (Pl.Exh.41, p. 40). Mr. Spencer, too,'testified 

that if "65" were the passing score rather^than "70", he could not state with 

confidence that the same persons would still fail his examination. (Pl.Exh,42, 

pp. 52-33). The Court finds that if essay passing scores can acceptably be 

set by judgment,, the exercise of judgment is so limited and attenuated on the 

Bar Examination as not to constitute setting the passing score by judgment.

4 3 . . Each time the Multi-State Bar Examination has been given,, a number

of other states have had equivalent passing scores on the IfflE lower than 

South Carolina's IffiE passing score. In February, 1972 , the lowest equivalent 

passing score calculated by the NCBE was 112 on the MBE, as compared to 124 

in South Carolina; Pennsylvania, whose equivalent score was not calculated 

by the NCBE, had a passing score below 9 o ’ (D r. Bemreuter's testimony). In ' 

July, 1972, the lowest equivalent passing score calculated by the NCBE was.106, 

as compared to 118 in South Carolina. In February, 1 9 73 , the lowest equivalent 

passing score calculated by the NCBE was 100 , as compared to 116 in South ' ‘ 
Carolina. . ' • • . . -

Spencer testified that he knew of no reason why'south Carolina's 

Bar Examination should be more difficult to pass than the Bar Examination in 

other states such as Pennsylvania, and the Court finds that there is no reason 

that the passing score should be higher here.

The Court finds that an average of at least five white applicants 

eaci, year are admitted to-the liar who true scores on Ihc Bar Examination arc



bcJ.ow "70". .Dr. Wliitloc.k Lostificd that the standard error of measurement on 

the examination is two points {Pl.Exh.37, Table ITI). Mr. Statler testified 

that 50% of persons scoring "70" would have true scores below that; 30% of 

persons scoring "7i" would have true scores below "70". According to a 

summary based on Pl.Exh.28 submitted by Plaintiffs' counsel and verified by 

the'Court, in 1970 through 1972, 12 white applicants were admitted who had 

scored "70"; 16 white applicants were admitted who had scored "71"; and 35 

white applicants were admitted who had scored "72". The probabilities testified 

to by Mr, Statler show that probably about 17 white applicants among the above 

group admitted to practice have true scores below "70". .

A6. As a result of the diploma privilege for graduates of the University

of South Carolina Law School, a large number of distinguished white members 

of the Bar in South Carolina were admitted to the practice of law without ever 

having taken a Bar Examination, These include persons holding substantial 

positions of public trust to the present day, including but not limited to the 

following (Stipulated Requests for Admissions, Para. 1-10); (1) three judge.? of

the United States District Court for the District Jof South Carolina; (2) four 

Justices of the Supreme Court of the State of South Carolina; (3) ten of the  ̂

sixteen Circuit Judges of the Circuit Courts of South Carolina; (4) six 

Circuit Solicitors; (5) four members of the Board of Law Examiners; (6) United 

States S.enator Ernest r . Hollings; (7) United States Congressman James R,' Hann; 

(8) the Governor, Secretary of State, Treasurer, Attorney General, and Commisslone 

of Agriculture for the State of South Carolina; (9) eight members of the 

Senate of the State of South Carolina; (10) eight members of the House of ' 

Representatives of the State of South Carolina, . ’ ' , :

47. . Defendants have introduced evidence that graduates of Howard 

University Lav School and other predominantly black law schools are failed in

number^ a variety of slates, rocluoiug .“.labama, Maryland, Pennsylvania, 

Ohio, and Connecticut (Def.Exh.44-48). Lawsuits similar to the present action 

are pending, however, in all the .above jurisdictions except Pennsylvania.

48. , Defendants also introduced evidence that black graduates of 

predominantly white law schools are passed with greater frequency than black 

graduates of Howard and other predominantly bl.nck law school.?, in Alabama,



Ptnmsy Ivanht, uud SouLh Carolina. None o'l tlie cUflurouccs between passing 

rates tor Howard as opposed to wliitc insLitutlons is su 1:ficlent:ly large to be 

statistically significant, .however, and...there were very few cases from other 

predominantly black schools. In both Alabama and South Carolina, the percentac-a 

of black ̂ graduates of predominantly white institutions who are failed is . - 

substantially higher than the percentage of white applicants v?ho are failed.

In .Alabama from 1958 to 1972, 784 of 1134 (697r.) of white applicants passed, 

whereas only 15 of 31 (48X) of black graduates of predominantly white law 

schools passed. (Def.Exh.45), In'South Carolina from 1968 to 1972, 95% of whit 

applicants were eventaully admitted, but only 577c of black graduates of 

predominantly white law schools were admitted in that period (Stipulated 

Requests for Admissions,' Para. 17). . '

. defendant's also attacked the quality of legal education provided by 

the Howard University Law School. The Court finds from the evidence that there 

are no deficiencies in the'faculty and curriculum of the law school at 

Howard. The evidence introduced recognized that Howard accepts a larger 

number of '‘high-risk” students than other law schools. However, the only 

measure of the quality of Howard graduates adduced, v?as performance on Bar 

Examinations, which the Court finds is not logically probative of whether 

Bar ExEsminations are measuring the extent to which legal, education has 

adequately prepared a law school graduate for the practice of law. Further­

more, the figures adduced by Defendants showing a decline in the passing rate 

on state bar examinations of Howard Law School graduates over the last three’ 

to four, years is inapposite to this case for the reasons that only two of the 

Plaintiffs are Howard Law School graduates of which, one'(Kelley) graduated 

prior to the time showing a decline in bar examination passage rate, while 

the other (Spain) graduated 20th in his class and cannot be regarded as a
■o .

"high rish" student.

50. The Defendants introduced in evidence certain Inspection Reports

prepared by accreditation teams of the American Association of Law Schools.

These voiced certain general criticisms of Howard, such as inadequate library 

seivices, but Reports introauced for other schools, including the University'- 

of South Carolina, had similar general criticisms.



31, The TnspocCion Reports c Icarly ‘ recoj-ui;a'd that maiiy of the law

schools visited liavc a particular local mission. The 1963 fccport on the 

University of South Carolina, for example, raised questions about the Iav7 

admissions standards (p.7) and the comparatively low attrition rate (one third 

of entrants) (p. 11) at that time, but noted that the law school was producing 

needed resources of legally trained personnel for the state (p. 12), The 

same kind of comments v;ere made in more recent Inspection Reports on the 

University of North Dakota- and Ohio Northern University, which noted that 

many graduates of those schools would not have been able to obtain legal 

education elsev;here. All witnesses at the trial and the Inspection Reports 

recognized that Howard University has a special national mission of training 

legal resource personnel for the black community, which the Court finds to be 

analogous to the local mission recognized for other law schools.

52. Current figures on attrition at Howard were not introduced. From 

the 1959 Inspection Report, however, it app>ears Chat attrition was 33%

. (9 of 27) from the beginning of the second year to graduation in the class 

of 1957, 337o from entrance to graduation in the class of 1958 (3.6 entered,

10 were out by the end of the first year, no more than 24 completed the 

second year in 1957), and 417= (19 of 46) from the beginning of the first year 

Co the end of the second year in the class of' 1959. (Prosser Report’, p. 6).

53. . As the 1959 ReinspecCion Report on Howard states, Che deficiencies

in Howard Students are not in native intelligence and ability, but in the 

inadequacies of formal education they had previously received' in segregated 

schools (p. 7). The Court finds, therefore, that any pattern of deficiencies 

in the performance of Howard graduates on Bar Examinations must be attributed 

to the poor formal education they initially received, and not to the .quality 

of legal education they received at Howard. * . . ^

54. The Court finds that many of the Law Examiners place an important 

emphasis on formal grammar in their grading of papers. Mr. McFadden testified 

that grammar could make the difference between passing and failing (Pl.EKh.39, 

pp. 45-^7), and Hr. Schumpert testified that poor grammar had on at lease

one occasion made a substantively adequate paper a borderline one, in his 

judgment (Pl.Exh,43, pp. 21-22),' Both Mr. McFadden and Mr. James had numerous



co']!:”.ants on Unjii mndiag suniiiiarics (Pl.Exh.47 ic48), includin'-

the Pl.-ilntiff Richardson's paper for both of tliem.- The use of grammar as a 

criterion is also shown by the fact that Plaintiff Spain and the witness Toal 

v;ere both highly consistent in' identifying papers of failing applicants as 

having grammatical errors and other useage characteristic of black persons."

.(Def. Exh.24; Pl.Exh.55 & 56) ■ ' ' '

55.  ̂ The Defendants also asserted a number of factors contribute to poor

performance on Bar Examinations, including work outside of law school, 

declining grades in Che third year of 'law school, poor grades on various - . . -

subjects, low Law School Admissions Test scores. The unsystematic assertions 

concerning these matters by the witness Professor Stevens have little probative 

value. , Such systematic analysis as was prepared by the witness Statler of grade 

averages and L.S.A.T. scores indicated that L.S.A.T, scores 'had only a little 

relation Co Bar Examination performance (Pl.Exh.54, p. 61; Exh.Cl, Table II)

and Chat grade averages predicted only about one third of differences in Bar - - 

'Examination results (Pl.Exh.54, p. 60). Several persons, for example, with 

no L.S.A.T. score as high as Plaintiff Richardson's'best score have been 

.admitted to the South Carolina Bar. (Wedlock Aff., Exhibit to Stipulated 

Requests for Admissions). Almost one quarter of all U.S.C. law graduates who 

. were admitted to the Bar from 1969 - 1971 had some D's or- F's in law school 

on Bar Exam subjects, and about eight per cent had four'or more D's on such 

subjects.. (Pl.E.xh.59). " ’ , .. -

56. ' The importance of grades is further discounted by the evidence that

■ at least one of Che few U.S.C. law graduates who has been excluded from the

Bar by the Bar Exam had a good academic record at U.S.C., and rcas subsequently 

admitted to the District of Columbia Bar, although the applicant was failed 

twice on the South Carolina Ear. Also, Plaintiff Spain's grades at'Howard 

wore generally quite good, and he graduated high in hi.s clas.s there, yet he has 

been twice failed in Che Bar Examination.



. ‘ . ' CQNCLUS7.0NS OF LAW

1. The .statistics of; differential admission 'rates, top,other with the 

opportunity to discriminate afforded by the submission of pictures with each 

application and the history of discriminatory practices in the legal profession 

and in admission thereto in South Carolina, establishes a prima facie case of 

purposeful discrimination against Plaintiffs on account of their race. Browai v. 

Gaston County Dyeing Machine Co., 457 F. 2d 1377, 1382(4th Cir, 1972);

Stephens v. Cox, 449 F 2d 657, 559(4th Cir, 1971); Turner v . Fouche, 396 U.S. 

346(,1971); Chambers v. Hendersonville City Board of Educa.tion, 364 F. 2d 189 

(4th Cir. 1956) (en bane); Griggs v. Duke Power Co., 401 U.S. 424 (1911).

2. This showing is not rebutted by the declarations of the defendants

that they have not in fact discriminated. ' . ^

.3, Since the administration of the Bar Examination in its present form

has an adverse impact on members of a racial minority, the state officials using 

the test must demonstrate a compelling state interest and the lack of availability 

of less onerous alternatives to justify the use of the examination in its present 

form, Bolling v. Sharp, 347 U.S. 497 (1954); Korematsu v. United States. 323 

IJ. S. 214 (1946); Loving v, Virginia, 388 U.S. 1 (1954). See also Armstead v . 

irl-ville Municipal School District, 325 F. Supp. 560, 570 (N. D. Hiss. 1971),

af f ’d . 461 F.rd 276 (5th Cir. 1972 ).

4. . The compelling state interest test is particularly appropriate in the

contejct of a bar examination, in light of the important state interest in making 

a racially integrated bar available to all citizens. DeFunis v. Odegaard.

507 P.2d 1169 (Wash. Sup. Ct. 1973), , , ■ ‘ ,

5. Defendants .have not demonstrated a compelling state interest for the 

cut-off score of "70". By the testimony of their own expert witness,'Hr, Statler, 

more v;hite practitioners who merely scored "70" or better by chance, not by'trus 

abiiitiy, were admitted from 1970 to 1972 chan the entire number of black 

applicants refused admission to the South Carolina Bar since 1968. The Law 

Examiners know of no reason that the passing score should be higher in this 

state chan in otb.er states, yet a cosiparlson of scores on the Hulti-State Bar 

Examination shows that a number of states have lower passing scores. A statistical 

tec l.n i quo whic ii I)e fondants ‘ own cx[’crt v;itnc.ss. Dr. Bernreuter, proposed in 

Fcnn.sylvania as a justifiable method of setting a pa«s i ng Iseore w\mld linve



E C t  the pettiag score oL "65" in South Carolina. Furthermore, apparently 

unwittingly, and perhaps because there are now six Examiners to share the 

responsibility for failing applicants, the- Examiners have increased the general 

difficulty of passing’the examination in recent, years, at precisely the time 

that there has been an increase in the number of black applicants for admission. 

A H  these factors show that an adjustment of the passing score is a less onerous 

alternative available to the Board for minimizing the discriminatory effects 

of the examination. , . . ‘

6. Further, the guidelines published by the Equal Employment Opportunity' 

Commission, 29 C.F.R. §1607.5 et seq., are appropriate standards for interpretinz 

the constitutional obligations of the defendants’. Chance v. Board of Examiners. 

458 F.2d 1167, 1176 (2d Cir, 1972); Castro v. Beecher, 459 F.2d 725, 733

(1st Cir. 1972); Carter v. Gallagher. 452 F.2d 315, 323, 329 (8th Cir. 1972)

: (en banc): Armstead v, Starkville Municipal Separate School District, supra.

461 F.2d at 281, n.l. These guidelines require that, when a test used for 

occupational selection has adverse Impact on a minority group, the test must 

be demonstrated ,to have criterion-related validity', if feasible. See Fowler v . 

Schwarzwalder. 351 F. Supp. 721, 726 (D.Hinn. 1972), 29 C.F.R. §1507.5 (a).

If criterion-related validity cannot feasibly be demonstrated (e.g., because 

only a ■very small number of persons are hired for 'positions), then content 

validity may be established, H  there is "sufficient information from job 

analyses to demonstraie the relevancy of the content." 29 C.F.R. §1607.5(a); 

see also 29 C.F.R. §1607.5 (b)(3). '' . , ; ■ -

7. ‘ ' The evidence is uncontradicted that a study of criterion-related 

validity is feasible for the South Carolina Bar Examination. However, this 

Court need not determine whether because it is feasible, it is required 

constitutionally, since there is not sufficient evidence in the record'"even to 

establish the content validity of the c.xair.ination. The total failure of the 

defendants to prepare a job analysis in the months before trial, even though 

tliey have had an expert witness in Columbia since the beginning of February, 

1973,^makes it impossible for the defendants to demonstrate content validity 

to the Court. In Bridgeport Guardians, Inc, v. Members of Bridgeport C. S.

Con^, 354 F. Supp. 778, 792 (D. Conn. 1972), the Court held tliat although 

ru,l!,„.nl.'iry i.,1, cIo h.’r I pi I uns were avall.’ihlc, tin- nlnsenc- ot a .sysiomatic Job

• lu..lysis precluded a .showing uL conLeut validity, The same was true in Fowler 

V. .->cn,;arxv;n leer, .supr.a, 351 F. Supp. at 725, where there were informal job

analyses, but the Court struck down tlie tests. because, "It did not appear



e lonieats that

wcic! based upon a systematic, empirical review of the 

up job performance." Cf. Baker v. Columbus Municipal

Separate School District, 329 F. Supp. 705, 715 (M.D-'Miss.) (1971), aff'd

on other grounds, A26 F.2d at lll'A C5t:lv Clr., 19720', pointing out that the

National Teacher Exam "tests in some degree for only four of the 25 criteria

used by defendants to evaluate in-service teachers.” In addition, there is

some evidence from the investigation of Dr. Whitlock, plaintiffs* expert

witness, that many important aspects relevant to good job performance are

not tested on the Bar Examination. Defendants concede as much, although they'_

claim most of these aspects are tested indirectly-. . .

8. In view of the history of racially discriminatory practices in

legal education, in admission to the Bar, and in the profession itself in

South Carolina, and in view of the history of segregated public education in

South Carolina,' the defendants have an affirmative duty to assure that their

policies and practices do not perpetuate in the present the effects of past

discrimination. As the Court of Appeals for the Second Circuit stated,in

Nonjalk CORE v. Non'^alk Redevelopment Agency, 395 F.2d 920, 931 (2d Cir. -

196S); . ' . - ■ ■ ■

, .'.equal protection of the laws’ means more than merely 
the al)sence of governmental action designed to discriminate,

, .v/e now firmly recognise that the arbitrary quality of 
thoughtlessness can be as disasterous and unfair to private 

. rights and the public interest as the perversity of a willful 
■ scheme.

See also vmicc /. Reg 2T, 41 U.S.L.W. 4885, 4889-90 (S.Ct. June 18, 1973) ‘

(election districts); Hill v. Texas, 316 U.S.,,400, 404 (.1942) (jury commissioner 

Keves V .  School District No. 1, Denver, Colorado, 41 U.S.L.W. 5002, 5005, 

n.ll (S.Ct. June 21, 1973) (public education); DeFunis v. Odegaard, supra.

507 P.2d at 1180 (public legal education); Carter v. Gallagher, supra,(public 

employment).

9. Because the defendants herein, like many public officials, have not 

heen fully cogniganl of their duties, they have taken no steps to fulfill them.

10. Defendants, apparently like Ear Examiners in other jurisdictions, 

have uncritically followed policies that perpetuate the effects of past



discriminaliuii. As Che SuproTTio Court; receitLiy comnien'Led, its earlier uccisioa 

in v. Duke Power Co., supra, was

,| . . .rightly concei'ned chat childhood deficiencies in the
education and background of minority citizens, resulting 
from forces beyond their controi,. not. be. allowed to work a 
cumulative and invidious burden on such citizens for the 

' ■ remainders of their lives.” McDoncIl-Douglas Corp. v. Green, ‘ •
■ 41 U.S.L.W. 4651, 4655 (S.Ct. May 14, 1973).

The substance of one aspect of the defense presented at trial by defendants

was that Howard University Law School admits more students with deficiencies in

earlier formal education, and therefore its graduates cannot be expected to

do as well on Bar Examinations. This approach, of course,, begs the question

of whether despite these earlier deficiencies, Howard graduates are adequately-

prepared for the practice of law; and it is precisely that question that

defendants should be attempting to answer, by evaluating the content of their

examination, the manner by which the passing score is set, and the relation

(if any) of Bar Exam results to performance in the actual practice of law.

Instead, defendants* grading procedures actually 'emphasize in many instances

matters such as faulty grammar, which are a result of early training deficiencies.

11* The determination of the passing score is likev7ise arbitrary and •.

capricious. Examiners McFadden and Schumpert make no judgments about the

quality of a minimum passing, paper. Examiner Rosen raises his papers'an

arbitrary number of points because ”70” is not a magical figure. Examiner

Spencer often raises his papers a few points just .if he thinks it is : .

appropriate. Examiner Freeman tries to get an overall judgment of the whole'

p.aper, without even reducing his expected answers to writing. The process is

wholly lacking in standards or rational justification. Therefore it lacks

due process, and cannot be sustained. Schv;are-v. Board of Bar Examiners, 353

U.S. 232, 238-39 (1957). . y

12. Computational errors that have prejudiced some applicants, and may

have oven prejudiced the individual plaintiffs have been revealed. Had the
i

Examiners applied consistent standards over the years. Plaintiffs Spain and 

Kelly v/ould both have been admitted the first time they took the South Carolina 

Bar Examination. A sy.'̂ wCrn th-u. produces such results cannot be sustained against 

a challenge on due process grounds.



3̂- l-urcbcnnorc;, the refusal lu givu failed candidates an opporCunity

to review their papers, or to bo told their scores, or in any way to be able 

to review their papers or to seek review of the Board's decision to fail then 

violates the basic tenets of due process that require that citizens 'ue given 

reasons for governmental decisions. Goldberg v. Kelley. 397 U.S. 254 (1970) 

Since plaintiffs have complied with all requirements for admission 

to the South Carolina Bar except acheiving a passing score on a bar examiuatioD 

which unconstitutionally discriminates against them and which has not been 

shown to be job related or valid, their remedy for such unconstitutional state 

action is admission to the bar. Baird v. State of Arizona, 401 U.S. 1 (1971) 

There is no pre-determined maximum membership In the state bar, no vacancies 

which must become available before new members can be admitted. Plaintiffs 

■are entitled to the "rightful place" which they would have held but for the - 

unlawful effect of the bar examination. Chambers v. Hendersonville City Board 

aLMuBiltion, 364 F.2d 189 (4th Cxr. 1966); Wall v. Stanley County Board of 

Education. 378 F.2d 272 (4th Cir. 1967). ■ '

.and II IS SO ORDERED. u"..' 'I'' -'VI'-V-f

U, S. District Ju

Charleston, South Carolina
1973



' CK̂ vT̂ F̂̂ .CÂ 'T Oi- SERVIC)':

r hereby certify that I have served copies of the attached proposed 

Orders upon the defendants by mailing same to their attorneys.of record, 

Randall T. Bell, Esq., and Ben Greer, Esq., in properly addressed envelopes '
A rr

with^postage attached, at Charleston, South Carolina this / _______day

of August, 1973, ' ■

Frank E p s t e i n y



; UNITED STATES DISTRICT COURT

DISTRia’ OF SOUTH O^ROL^NA 

CHARLESTON DIVISION 

DAVID RICHARDSON, ct al., etc.

Plaintiffs,

Civil Action No, 72-1219

)
)
)
)
)
)

STATE BOARD OF L/.H EXAMINERS, et al., )
)

Defendants ) ■ ■ ' - -
) ‘ ‘ '

PROPOSED ORDER OF ABSTENTION/REMA'ND ' ; '

This action vas brought by four black law school graduates as a 

class action on behalf of all persons similarly situated attacking the 

examination procedures of the State Board of I.,aw Examiners for South Carolina, 

and seeking admission to the Bar of the State of South Carolina for plaintiffs 

and others similarly situated. Plaintiffs^ allege as grounds, for relief four 

causes of action: (1) intentional or purposeful use of.the Bar Examination as 

a recially discriminatory screening device; (2) that the examination is an . -

impermissible screening device because it has adverse impact on a racial minority 

but has not been demonstrated to be a valid predictor of successful performance 

in the profession; (3) that the examination as administered perpetuates the 

effects of unconstitutional segregated public schooling, that existed in South 

Carolina for many years; (4) that the .examination evaluation procedure is 

lacking in due process. , ' , • -

The trial of this matter commenced- on July 16, 1973 and the Court 

hevTrd closing arguments on July 26, 1973. After extensive preparations had 

been made for trial and a trial date set,‘Defendants for the first time urged 

upon the-Court the proposition that the matters set forth in the Complaint.

.were within the exclusive jurisdiction of the Supreme Court of the State of 

South Carolina. The position was adopted by Judge Nerighe in an order in 

Lee_ v. Kuykendall, Civil Action No. 505-72-R (E.D.Va. July 20, 1973),'issued 

while the trial of this case was'in progress. The Court does not find that this 

constitutes grounds for dismissal of the action, as prayed by the Defendants, 

particularly after the Court has had almost two weeks of trial in the-case.



T!ic riourt docs conclude, however, that the matters presented here, £or the 

reasons hereinafter suaLcd, siiould first be considered by tiic Supreae Court 

of vSoutli Carolina and its Board of Law Examiners. . - -

Probably few institutions known to man could be subjected to a week 

and a half of scrutidg in a trial without many possibilities for improvernent 

coming to the attention of all concerned. The Court is persuaded that there 

is room for improvement in the examining and admissions procedures for the 

South Carolina State Bar, The Court has not yet determined, however, that any 

of the possible improvements reach the status of constitutional rights of the 

■plaintiffs and other applicants, and holds those matters in abeyance-at this 

time. The Court concludes that in this particular instance the Board of Law 

Examiners or the Supreme Court of South Carolina should first have an 

- opportunity to review these procedures before this.Court assays to render 

any opinion on the merits of the case. ,

The Court would recommemd for particular scruting "the method of 

evaluating applicants whose scores on the examination are "borderline, *’• • .

Counsel for the plaintiffs has suggested, based uppn expert testimony, that ' ' 

the "borderline" cases could be defined in terms of Che probability that.an 

applicant has .a true score of "70” (the passing score) or above. Based upon 

the calculations of the error of measurement inherent in the test, which errors 

characterize any test constructed by human beings, an applicant who scores 

above "66" has a probability of VL of having a true score that is passing.

(If be scores above "67” he has a probability of at least 5X o'f having a 

true score that is passing; -”68" - 16%; ”69” - 30%). The Court would think 

these statistical measures an appropriate guide for the Board to consider in ' 

granting further consideration. .■ - • ....

In this 'borderline" area, the Board might wish to consider other' 

evidence, in addition to the test scores, in evaluating the appIicatiL’s legai 

knowledge. It might request a sample of v^rltten or oral argument by the 

applicant; it might inquire orally of the applicant's knov7ledge of practical 

legal matters important to the young practitioner, svich as title searches and 

domestic relations practice. It might solicit written rccoimoendations or oral



t'jnt-ir.’.ony lla* a{>p i.j cnae's law pi ol <*?5'̂ nrc: £rorr. persons wliu ii:jvc

supervised die npplicanr. in resiionsible oinploymcnt positions, particularly 

ones in which legal training has.come into play (e.g, attorneys who have 

supervised the applicant as a legal clerk). It might consider the applicant’s 

•academic record in law school and college, and any other evidence of the 

applicant’s general ability that the applicant wished to present in support 

of his application for admission.

The Court therefore abstains from decision of the merits at this 

time, although it retains jurisdiction of the case. American Trial Lav^yers 

Association, N. J. Branch v. New Jersey Supreme Court, 93 S.Ct. 627, 34 L.Ed.2d 

651 (1973). , ■

The matter is remanded to the Board of Lav; Examiners.for any further 

proceedings they may.wish to undertake sua sponte, or at the request of the 

Plaintiffs, If the matter is not resolved to the mutual satisfacticnof the 

parties by the date that applicants who took the Bar Examination in July, 1973, 

are sworn in by the South, Carolina Supreme Court, either party may .at that • 

time move this Court, pursuant to notice to other parties, to enter an 

adjudication of this matter on the merits.

AND IT IS SO ORDERED. ' '

United States District Judge