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February 13, 2020


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" The best evidence suggests that a passing score comparable to 1440 was established sometime between 1950 and 1955 by Bar leaders of that era. Keep in mind that law students and bar examinees of the 1950’s were almost exclusively white males. In fact, Harvard law school did not admit women until 1950."

So, women can't do as well as men on the bar exam? How sexist can you get?

Mitchel Winick

Dear Anon. Sorry that you misunderstood the point that I was attempting to make. Standardized licensure exams should be validated to evaluate the population being currently tested. The bar exam score was essentially “normed” on an all white, male cohort. That would fail any statistical validation for an exam that is expected to be measuring the minimum competency of current examinees.


President Winick, I'm glad to see that you responded to Anon's comment. However, I think I agree with Anon that your argument based on the origin of the cut score is problematic. It really sounds like you're saying: Yeah, a high cut score was fine for white males of the 1950's, but women and minorities of today need a lower bar.

You responded that licensure exams were "normed" on an all white, male cohort. I'm not sure this accurately describes how a cut score is (or at least, should be) determined. The purpose of a licensure exam is to measure a minimum competence for a particular field. For example, a civil engineer needs to show that they have minimal competence so that the public is protected from collapsing bridges. It really doesn't matter what cohort took the test when it was first designed; if it is a valid and effective test, it will serve its purpose of preventing licensure of incompetent engineers. If it is not valid or effective, based on original flaws, changing technology, or for any other reason, the test needs to be changed. But the identity of the test taking population is entirely irrelevant to that analysis. The "minimum competency" does not change based on the "categories of examinees," as your article and response strongly imply.

That being said, diversity is a real benefit of a lower cut score for all the reasons mentioned in your article and more. In weighing the costs and benefits of a high or low cut score, this benefit should certainly be included in the calculus, but without the implication that the test needs to be re-normed because there are now different "categories of examinees." Instead, one only needs to recognize, as a practical matter, that (i) a lower cut score increases diversity and (ii) increased diversity is a heavy additional weight that gets added to the 'low cut score' side of the scale.

The only relevance that the 1950's origin of the cut score should have to this analysis is that, in the 1950's, diversity was not recognized as of much value in the legal profession. Today's legal profession should not be beholden to the cost/benefit analysis performed in a previous era. Obviously, protection of the public remains a heavy value today, but adding the weight of increased diversity onto the scale certainly favors at least some reduction to the cut score.


"In 2016, the majority of students enrolled in ABA law schools were women a . . .This raises the question of whether the continued use of a standardized licensing exam with an artificially high passing score effectively and fairly measures minimum competence across all categories of examinees."

I definitely read this as saying that women were not as capable as men.

Then you said in a comment, "Standardized licensure exams should be validated to evaluate the population being currently tested. The bar exam score was essentially 'normed' on an all white, male cohort. That would fail any statistical validation for an exam that is expected to be measuring the minimum competency of current examinees."

Are you saying that women have a lower expected "minimum competency" than men?


'Standardized licensure exams should be validated to evaluate the population being currently tested.' No, they should be validated to evaluate the thing being tested--minimum competency to practice the law. This shouldn't change between 1950 and today. Thus your post is very sexist because it suggests that women can't do as well as men on the bar exam.


If I could offer a clarification. Psychometricians opine that exams should meet the following criteria: (a) validity, (b) reliability, and (c) fairness. These criteria are technical words of art, not general vernacular, and there are sophisticated statistical analyses to determine whether a test meets each standard.

The "fairness" criterion would be the applicable one here. Generally, this standard requires that a testing instrument should determine a result (here, minimum practice competency) equally with respect to culture, race, gender, etc. An exam written in 1950 for an all white-male cohort would undoubtedly unfairly exclude people who are non-white and/ or female from practice. As a result, that exam would be deemed unacceptable today.

However, the NCBE has worked diligently to ensure that the bar exam meets each standard of validity, reliability, and fairness. (And, I say this as an occasional critic of the NCBE). So, the 1950 exam's fairness (in the technical sense) now is not an issue, because the exam is completely different from what it was at that time.

Therefore, I think what President Winick might be conflating, is the separate topics of fairness (in the technical sense) and cut scores. The 1950s exam may have been the origin of the cut score, perhaps, but "fairness" pertains to the EXAM ITSELF and not the cut score applied after the exam. The cut scores are beholden more to the processes of equating and scaling, neither of which actually occurred in the 1950s.

This is my impression of the conversation, but I'll be happy to be corrected. (And, BTW, these comments should not be read as addressing the issue whether the cut scores are problematic w/r/t race, gender, etc.)

Female Cali Bar Exam Taker

Dean. Do you have evidence that women score lower on the California bar exam, or are you just assuming that we do?



Please tell us: what percentage of total students do these categories *as you define them* of students represent in the student body of Monterey College of Law: blacks, Hispanics, and Asians?

Obviously, one who advocates the inferiority of these groups on objective measures (and thus the need for affirmative action, i.e., lowering the standards, to fill a need for "diversity") will have admitted a greater number of these groups than the "white males" you so blithely disparage and denigrate as racists.

OTOH, if in fact this is a faux concern of yours, used as a cloak to advance the interest of your own law school's graduates, and if those graduates will not appreciably influence the diversity of the California bar, then I think the public reading your posts should know how must YOU have done to advance diversity in YOUR law school.

As for the "woman" angle, how risible can the Dean's argument be? He must be including "white" women in his opprobrium and specious implicitly stated argument that some groups are inherently inferior, no?


Female Calif Bar Exam Taker, actually there is evidence. Just looking at the results for first time test takers for the last three (2017-2019) July test dates, women had lower pass rates by 3.7 to 4.2 percentage points teach year than men. For the record, I don't think that such a modest difference tells us anything about either the relative abilities of women vs men as law school students and lawyers, or about any bias in the test. Those with axes to grind may feel differently.

Lisa D.

Winick not only is being sexist, he is exploiting discrimination against women for his own purposes. Men and women score the same on the bar exam. One time men score higher, the next time women do. To state that women do worse than men on the bar exam is false stereotyping.

But Winick is not making these claims to help women, he is doing this to help his own law school. He is just using false claims about women as an excuse so that he can get more students for his law school. The irony here is that the graduates of Winick's law school have an abysmal record on the bar exam. So there is something seriously wrong in California! Winick owes an apology to all women.



It's worse than just "getting more students."

For law schools like Monterey, getting and keeping accreditation is a key concern: as is having a plausible answer to the justifiable questions that applicants will ask about the bar pass rate.

The conflict of interest is so troubling here. The FL has a track record of allowing self interested members of academia to spin facts to their putative advantage: see, e.g., the "best time to go to law school" fiasco a few years ago, that has never been acknowledged. Surely, apologies are owed for that one to anyone who relied on the claims that were made on these pages.

I don't know about an apology here. But this Dean, at minimum, should have prefaced everything he said to make excuses to lower the bar with a disclosure of the efforts by HIS LAW SCHOOL to admit the groups whose abilities he impugns, and the results of those efforts.

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