Delaware lowers standards for Bar Exam to increase diversity

The Delaware Supreme Court cites diversity as a primary impetus in its recent decision to decrease the minimum score, duration, and content breadth in the state’s bar exam.

Data suggests, however, that diversity might not be the only reason for this decision: applicant abilities to pass the Delaware Bar have also significantly fallen, indicating this could be another instance of dwindling academic standards.

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The passing score for the multiple choice portion of the exam has been lowered from 145 to 143 out of 200 questions. Additionally, the number of essays has been reduced from eight to four, and the content areas for possible essay questions has been curtailed from 14 to 10.

These changes decrease the time to take the exam from two and a half days to two days, according to Reuters.

Big Bar Exam news. Going forward, Delaware will offer the exam 2x/year instead of once. Cut scores will be reduced from 145 to 143. And the number of essays will be reduced from 8 to 4. Also the clerkship requirements will be substantially scaled back. pic.twitter.com/VrP9WG4WOO

— James Levine (@JamesHSLevine) February 22, 2023

Although Delaware’s Bar Exam is notoriously challenging, a recent report examining the bar’s administration identifies that “two of the last three administrations of the Bar Exam have resulted in pass rates around 52%, the lowest rates recorded since 2004,” suggesting that less people, regardless of race, are able to pass the bar than in past years.

Yet, increasing diversity is a significant debate in the legal profession, and it has been cited by advocates of removing other standardized testing requirements, including the LSAT.

Collins J. Seitz Jr., Chief Justice of the Delaware Supreme Court, was the co-chair of a committee that published a report in January 2022 entitled “Improving Diversity in the Delaware Bench and Bar.”

Chief of Community Relations Sean O’Sullivan clarified for Campus Reform that the “Delaware Judiciary believes it is important that the Delaware Bar reflect the diversity of the community it serves.”

The report explains that legal professionals in the state “feel that the bar admission process may significantly contribute to the lack of diversity within the Delaware bar.”

At the same time, however, the report acknowledges that “[m]any attorneys and judges of color who were interviewed voiced concern that adjustments might be seen as race-based accommodations that would lead others to claim that they are not as qualified as others seeking admission.”

O’Sullivan explained in the official press release that the Supreme Court’s decision “is not a lowering of the standards but a modernization of the process” that “will keep Delaware competitive in attracting top legal talent to the state.”

Campus Reform Higher Education Fellow, Ken Tashjy, Esq., however, objects.

”It is counterintuitive to claim that making the bar exam less rigorous will enhance its competitiveness,” Tashjy remarked to Campus Reform. “It’s really quite simple, making the exam easier to pass means more less qualified individuals will pass the test.  These changes do not reflect modernization, but rather, mediocrity.” 

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Seitz is quoted in the formal press release of the decision as saying, “The Bar Exam is not supposed to be a barrier to entering the profession but is supposed to be a test of an applicant’s ability to successfully practice law in Delaware and I believe these reforms will help better reflect that purpose.” 

The American Bar Association Section of Legal Education and Admissions to the Bar and the National Center for State Courts denied Campus Reform’s request for comment on this story.

All relevant parties have been contacted, and this story will be updated accordingly.

Follow Gabrielle M. Etzel on Twitter.