After more than a year of study, a task force convened by the bar associations in Indianapolis has concluded part of the Indiana Bar Exam tests on “fake laws” and the revised grading system may be forcing the Board of Law Examiners to fail more students.
The Indiana Bar Examination Assessment Task Force, formed in 2015 by the Indianapolis Bar Association and Marion County Bar Association, did a detailed analysis of the state bar exam and made several recommendations that it believes would better measure the competency of applicants to practice law in Indiana. It released its 215-page report earlier this year with the acknowledgment it is an independent group with little clout since it was not commissioned by either the state of Indiana, the Indiana Supreme Court or the Board of Law Examiners.
The task force advocates for keeping the essay questions and the short-answer Multistate Performance Test but reducing the weight of the multiple-choice Multistate Bar Exam component from 50 percent to 35 percent.
The MBE portion of the bar exam includes questions on criminal law, torts and real property that are not based on Indiana law or the laws of any jurisdiction. In addition to not measuring the examinees’ knowledge of Indiana law, the MBE is graded by an out-of-state entity over which the local bar examiners have no control.
The task force also reiterated concerns that the MBE testing-format may have a disparate impact on minorities. In a footnote, it cited data from Valparaiso Law School which showed that from 2009 to 2014, only 48 percent of the students identifying as minority passed the bar exam compared to 76.7 percent of the students who identified as white.
The task force concluded the current bar exam has several strengths, namely it covers important Indiana substantive and procedural law. Preparing for the essay and MPT questions forces examinees to undertake a deeper study of subjects they may not have been exposed to in law school. Also, the sections of the bar exam are in local control and are graded by a collection of practitioners, law professors and judges.
The task force also considered other ways to determine the competency of those who want a license to practice law in Indiana.
The task force maintains there is great value to the bar exam, so it did not support any kind of waiver to sitting through the two-day test. But, it did find some merit in a “Diploma Privilege Plus” which would encompass a limited bar examination component in addition to experiential testing.
Some members of the task force were in favor of returning the Indiana Bar Exam to an all-essay format. The last such version was administered in 2000 and had 20 essay questions covering national and Indiana topics. One all-essay supporter on the task force was quoted in the report as saying, “The old exam worked well, it was not broken, and was superior to what we have now.”
In grading the bar exam, the task force offered several recommendations. Of special concern was the six-point relative grading system used for the MPT and essays proportions, which the task force described as a “force-ranking system” that drives examiners to spread the grades and potentially fail examinees who are still minimally competent.
Coupled with this, the task force recommended a reconsideration of the “borderline review” which was used until 2001. Essay scores that were close to the passing mark were automatically reviewed under the philosophy that assessing competency is not an exact science so some examinees should get a second look.
The task force also called for a review of the current appeals process. Examinees within nine points of passing can file an appeal to have their tests reevaluated. The task force raised questions if the appeals format in conjunction with the six-point forced-ranked scaled grading and fewer essay questions are offering less opportunity for a successful appeal.
What happens now is unclear. The task forces concluded by saying it was submitting the report to “interested stakeholders” and would be willing to further discuss its contents or undertake additional study as needed.