In his short story Harrison Bergeron (1961), author Kurt Vonnegut irreverently (and comically, as always) deconstructed the pitfalls of an extreme version of the modern bias to prize equity—not equality—at nearly all costs. In Vonnegut’s dystopian portrait of late twenty-first century—so, the future—a federal Handicapper General utilizes comical methods to impede nearly all forms of individual physical and mental advantage. Dance like Baryshnikov? Wear weight-leaded shoes. Play chess like Spassky? Lose the queen and a couple knights or bishops to boot. Think like Einstein? Get a brain chip that scrambles your most complex thoughts. Scary, right?
Last week, Washington jurists (we hope) accidentally mimicked Vonnegut’s Handicapper General when they jettisoned the state’s longstanding requirement that law students take and pass the bar exam in order to secure their license to practice. Instead, would-be or wannabe lawyers in the Evergreen can soon secure their licenses via a smorgasbord of experiential options that are quite susceptible to bad-faith dealing. For example, one path permits certification via a “six-month apprenticeship under the guidance of a qualified attorney” with an attendant requirement to complete (not necessarily perform well) some standardized coursework. I foresee a lot of friends of law-firm partners’ children taking advantage of their social network in-lieu of testing.
Of course, Vonnegut’s grimdark musings are a world away from the sorts of self-imposed handicaps that today pervade America’s corporate, academic, and political landscapes. As with most any contrasts, the dictionary—here, Merriam-Webster—offers the starkest comparison between equity and equality. The venerable lexicographer defines the former as “freedom from bias or favoritism” while the latter is “the quality or state of being equal.” Equity is nearly always good—insofar as it cultivates meritocracy among the professions, for example. Equality often is good—but not invariably so. Political egalitarianism—e.g., one-man-one-vote—is perhaps the best civic example of a positive equality. Another is the federal government’s requisite (though not always practiced) treatment of all sincerely held beliefs as “religious” for the purposes of enforcing the Establishment and Free Exercise Clauses of the First Amendment. So, whether a proclaimed religion’s tenets flow from the Bible, the Quran, the Torah, or—yes, this is a thing—the Gospel of the Flying Spaghetti Monster, American courts work vigorously to ensure that government is not prejudicing a particular religious practice on the basis of its content. Of course, there are limits . . . as when a religious practice harms others.
As with limiting religious practices that harm others, the government has a right—indeed, a responsibility (so long as it is regulating such matters)—to gatekeep unqualified persons from positions in which their disqualification is a matter of life or death, or would come at immense economic cost (which in the aggregate can itself become a matter of life or death). I think we can all agree that physicians should not be squeamish, police officers should have adequate aim, and teachers should know how to read. Testing at least does the foundational work of excluding from a profession—especially ones involving life or death—those who are abjectly unable to perform successfully. While tests are far from infallible, they are certainly more reliable than subjective, balkanized evaluation, which is ripe for abuse. Why shouldn’t lawyers, including those who stand between a defendant’s freedom and lifetime imprisonment, be required to demonstrate basic legal competence via objective metrics?
If a test so utilized is producing statistically significant racial or gender imbalances which do not reflect the respective proportions of those seeking entry, that is that test’s problem. It is not an indictment of testing writ-large. The college-entry Standardized Aptitude Test (“SAT”) was—and some argue still is—notoriously biased in favor of upper- and middle-class white students. To wit, as late as the 1970s, the exam featured logical comparisons like “runner [is to] marathon] as: (a) envoy [is to] embassy; (b) martyr [is to] massacre; (c) oarsman [is to] regatta; (d) horse [is to] stable.” Chances are my working-class Jewish parents from Brooklyn had a much harder time correctly choosing (c) than did a white-collar Protestant student raised on the coast of Connecticut. But again, tests are baselines. If third-generation Vietnamese-American students answer “book [is to] read as television [is to] watch” at a greater rate than do their White counterparts, this is almost certainly not the test’s fault.
The latest change to Washington’s legal profession sacrifices this function of testing at the altar of equality—and at the direct expense of equity. It is, in this sense, a bad thing. Such an outcome was not preordained, however. Several states have long provided alternatives to law school. But these were understood to be (relatively) rigorously regulated to approximate testing’s sifting mechanism. Few states, and until recently only Wisconsin (and even then just University of Wisconsin or Marquette University law-school graduates), permit would-be lawyers to forego sitting for the bar exam altogether. Bucking the longstanding practice of testing future legal professionals is a profoundly bad idea. Now, as an adherent to classical-liberal principles, I have always looked with some suspicion at any governmental effort to vouchsafe for particular vocations. In the early 2010s, Missouri attempted to require state licensing before one could commercially braid someone else’s hair. Silly attempts like this often more nefariously reflect existing practitioners’ sloppy attempts to collude with the state to reduce organic competition. In such cases, the standing professional base is abusing equity by turning it into a sword to vanquish potential competitors at the expense of its proper role as a shield to protect consumers. The best example of this in the legal world is California’s demand that out-of-state lawyers sit for the state bar no matter how long they have practiced elsewhere. If I lived in California–[shudder]—I would much rather have an attorney who has been practicing in Arizona for decades but cannot pass the Golden State’s bar, than I would a newly-minted native. But just as bad tests do not indict testing, neither do bad licensing regimes impeach the very idea of professional certification.
The aim of licensing should be to balance the demands of any profession with inequalities that are the result of inequities—as with the SAT’s discard of logical comparisons like “runner [is to] race as oarsman [is to] regatta.” Not inequalities that—like “book [is to] read as television [is to] watch”—are either coincidental or the result of factors beyond the test itself, and certainly unrelated to the concept of testing. Removing the bar exam requirement greatly risks exposing Washingtonians to bungling and blundering legal representation. It also risks the viability of legal malpractice insurance. If a license no longer ensures baseline competence via testing, than insurers have no efficient way of calculating rates. Most likely, this complication would produce cottage industries for lawyers to demonstrate their skill levels by other means—e.g., private testing. Since, like patients, potential litigants will never, ever (ever) prize equality over equity, removing the bar exam requirement merely changes what is doing the gatekeeping. It will not functionally reduce the myriad inequalities that come with some form of gatekeeping that all consumers demand, and will never stop demanding. If Washington’s jurists wish to fix the bar exam itself to address unequal outcomes, by all means. But discarding it, pell-mell, is not the answer.
Alki,
Sam Spiegelman