ST PAUL, Minnesota — At Mitchell Hamline School of Law in St. Paul, President and Dean Anthony Niedwiecki believes the bar exam is keeping talented people out of the profession — especially students of color.
"I don't think the bar exam actually tests the competency of what it means to be a lawyer in your first year of practice," Niedwiecki said.
Niedwiecki, who has been with Mitchell Hamline since July 2020, talked about the bar exam during his formal installation ceremony last week.
Despite an increase in diversity at law schools over the past two decades, the increase is not reflected in the profession.
"The profession has remained almost all white for the history of the profession. Over the last two years we might have seen 10%-12% of people of color that are lawyers, the rest are white. That hasn't changed in 20, 30 years and so something is going on. We have to really look deeply into what that is and I argue that the bar exam is one of those issues," Niedwiecki said.
Besides some students not being great test takers, there are barriers when it comes to the amount of time and money it takes to study for the bar. Prep courses can cost thousands of dollars and not everyone can dedicate enough time to study.
"They can't really work to succeed. So they have to take time away from work and now they just left law school with all this debt and then they have to work," Niedwiecki said.
Wisconsin does not require law school graduates to take the bar to practice law — something called diploma privilege. Niedwiecki said this was the norm before the 1920s.
"When we started seeing diversity increase or people from underrepresented communities — mostly people of color and recent immigrants, trying to become lawyers — then all of a sudden the ABA (The American Bar Association) and other bar organizations were doing whatever they can to keep them from being lawyers," Niedwiecki explained. "The written bar exam became a requirement of the ABA at that time. So that's when we started seeing all these written bar exams. Before that there were oral exams... apprenticeships, there were other ways to become licensed. I think we have to go back to those days knowing that the bar exam really kind of was back in the '20s rooted in exclusion."
Several states including Oregon are also looking at alternatives such as working under a licensed attorney for 1,000 to 1,500 hours and showing a portfolio of work.
Any change in Minnesota would come from the Supreme Court.
"I think the law needs to reflect the lived experiences of the diversity around us. When you only have one segment of the population that is actually influencing law... then you're not getting that diversity that I think we need," Niedwiecki said.
As of part of Mitchell Hamline's efforts to expand access, Niedwiecki recently announced a new scholarship. It will be named after Lena Olive Smith, the first Black woman to be licensed to practice law in the state.
"I think what we do in law school too often is we give scholarships based on merit and we don't focus enough on need," Niedwiecki said.
The goal is to raise tens of millions of dollars to fund the scholarships.
"We need to raise money to make sure that we're funding their scholarships so that they can be successful in law school, not have to work, and they can devote their whole time to the study of law. Even after they graduate, that it helps them so they don't have to incur more debt for the bar exam which puts them in a difficult situation," Niedwiecki said.
About 24% of those attending Mitchell Hamline are students of color.
Niedwiecki is aware there will be a lot of resistance to any changes in the bar examination.
"Is this system doing what it's supposed to do?" Niedwiecki asked. "If it's not, then let's break it down."
The Minnesota State Board of Law Examiners just started a two-year study looking at potential changes to the bar examination, along with alternatives.
Director Emily Eschweiler said, "We have an obligation to carefully study the issue and to determine what the best pathway is."
You can find more information on the study, here.