Delaware Supreme Court Approves Changes to the Bar Exam Aimed at Increasing Diversity and Attracting Legal Talent
On February 21st, Delaware’s Supreme Court approved changes to the Delaware Bar Exam. The changes were made based on recommendations from the Delaware Board of Bar Examiners after the Court ordered a two-year comprehensive review of the exam [1].
In 2020, the Delaware Supreme Court requested the Board of Examiners to consider changes to the Bar Exam. During the review process, the Supreme Court issued the Delaware Bench and Bar Diversity Project’s Strategic Plan, which seemed to have influenced many of the recommendations of the Board.
The Delaware Bench and Bar Diversity Project’s Strategic Plan identified the problem of lack of diversity within the legal field. According to the report, only 7% of law firm partners are people of color, and less than 9% of general counsels at large corporations are people of color [2]. They offered a comprehensive approach to addressing the lack of diversity within the legal field, and the Bar was only one part of creating a more representative judicial system. Some recommendations the report offered were conducting a study of minimum competence to determine the correct passing score, offering the Bar twice a year, and modifying the number of essay topics tested on the exam [2].
The report argued that a more diverse judicial system would increase community trust. Judges who do not look like the communities they serve can sow distrust among communities toward the judicial system [2]. Thus, they argue that having a judicial system that reflects the community it serves is critical.
The Board has considered the report when creating recommendations. To determine how to lower the score, the Board brought in a third party, ACS Ventures LLC, to conduct a test of minimum competence to pass the Bar. ACS concluded they would support a passing score between 140-144.8 [3]. The Board considered the findings, and a majority decided to lower the passing score to 143 from 145. According to a memo from the Board, they still wanted to make the exam challenging but did not want to discourage applicants with a low passing rate [3].
The Board also made other recommendations regarding the exam, the process to apply, and the Board’s internal organization. They recommended administering the Bar twice a year, in both July and February, changing the number of topics tested in the essay section from fourteen to ten, and reducing the number of essays from eight to four. The Board also suggested shortening the required clerkship from 21 weeks to 12 weeks, redefining the “checklist” of legal activities needed before applying to the Bar, and streamlining the application process. They also advocated for lowering application fees. The Board also proposed reorganization to facilitate the increase in members needed to administer the exam twice a year.
Delaware’s Supreme Court approved these recommendations in a Court Order on February 21st [4]. They will go into effect in time for the next administration of the Bar in July. According to an announcement from the Court regarding the changes, Chief Justice Collins J. Seitz, Jr. believes the changes will keep Delaware competitive in attracting legal talent and incentivize Delawareans interested in law to stay in-state [3].
The changes to the Delaware Bar reflect a more significant push to re-evaluate the Bar exam across the country. In 2020, California lowered its bar score from 1440 to 1390 [5]. Delaware law is also the “lingua franca” of the United States, as firms tend to incorporate in Delaware rather than their home states [6]. Changes to the Delaware Bar may encourage other states to evaluate their Bar exams.
The changes to the Delaware Bar exam appear relatively conservative but may have considerable implications for attracting legal talent and increasing diversity within the legal profession. Delaware’s changes may also influence other states to follow suit, increasing competition to attract the top legal talent.
