The Board of Law Examiners proposed increasing the passing score on the New York bar exam from 660 to 675 in 5-point intervals, the first of which was instituted in July 2005 with the next two increments scheduled for the following two summers.  Those have been delayed and the National Conference of Bar Examiners has issued a 155-page report on the diversity impact of that proposal.  If the full 15-point increase were instituted (which is significantly less than the 33 point increase initially considered), fully half of all African-Americans would fail the exam–up over 8% from the prior fail rate.  The impact on other races would also be significant–an additional 5% of Hispanics, 6% of Asians and 10% of Puerto Ricans would fail, but their total pass rates would in each case remain over 65%.  Only the African-American pass rate would fall below 50%. 

This data corresponds interestingly with the study conducted by Professor Sander at the University of California, Los Angeles, which has generated fierce debate.  Sander’s provocative study concludes that a major reason blacks are not as well represented among law firm partners as they are among new associates is that they have much lower average grades than their cohorts.  Sander also indicts the law schools for admitting blacks who are not prepared enough to do well at law schools.  Very few blacks graduate from the top 30 law schools with high grades.  While blacks make up 1-2% of law students with grades in the top half of their class, they make up 8% of corporate law firm hires, yet they are one-fourth as likely to make partner, and they leave large firms at 2-3 times the rate of white associates.  An interesting fact is that blacks have a much better shot at partnership at smaller firms, which are less likely to hire associates with lower than standard grades.

Some commentators have questioned the importance of grades (women lawyers have higher grades than men but are also under-represented as partners), others have attributed the fallout to a lack of mentoring or training, or to the fierce competition for able blacks, who are often hired away by clients, while still others contend that the big firm hiring practice sets blacks up for failure, reinforcing stereotypes on the way.

The importance of the two studies converge, particularly for New York law firms, if raising the bar pass rate further reduces the number of eligible black associates that firms can choose from.  Will those reduced numbers make prestigious firms lower their grade standards even further, with the implication that retention rates may drop even lower?

There is no question that any firm solving the diversity puzzle reaps a hiring, marketing and productivity bonanza.  Successfully hiring and integrating blacks, as well as other minorities, including women, requires that a firm understand its own and its associates’ cultural strengths and biases, have an active, long-term integration program that addresses each specific attorney and his/her goals, and honestly, consistently and regularly evaluate its own progress.