Delaware bar exam changes designed to increase racial diversity and ‘rip some barbed wire from the welcome mat’

No one’s really sure what percentage of Delaware’s roughly 5,000 lawyers are Black or Latino, but leaders in the state’s legal profession have been saying for nearly two years that it’s too low.

While court officials are currently in the process of gathering that data, the Supreme Court has responded to a report urging reforms by making three changes to the Delaware Bar Exam and several to the process for admission to the state bar — all in an effort to increase racial diversity.

The Delaware bar exam, considered one of the toughest in America, is currently the only one given just once a year.

Highlights of the changes, which ultimately aim to also increase the number of Black and Latino judges, include the following:

• Starting next year, the exam will be given twice annually — in February and July.
• The “cut” or passing score for the exam of 200 multiple choice questions will be reduced from 145 to 143.
• The number of essays will be cut from eight to four, and the number of areas of the law eligible for essays reduced from 14 to 10.

In addition to modifying the examination, the high court also:

• Reduced clerkship requirement from 21 weeks to 12 weeks.
• Cut the number of legal proceedings potential lawyers must attend from a

mandatory list of 25 items to 18 out of 30 potential items.

• Reduced the late application fee for law school grads and attorneys admitted in other states.

The court adopted the changes on the recommendation of the Delaware Board of Bar Examiners.

Chief Justice Collins J. Seitz Jr., who nearly two years ago launched the diversity project that issued the report suggesting reforms including bar exam changes, would not agree to an interview about the reforms despite repeated requests by WHYY News.

Instead, a news release by court spokesman Sean O’Sullivan said Seitz “noted that this is not a lowering of the standards but a modernization of the process to better reflect how other states handle admission to the bar. The chief justice said these reforms will keep Delaware competitive in attracting top legal talent to the state and keep Delawareans interested in the law from going elsewhere.”

The release also included a written statement from Seitz about the changes. “Delaware is the only state to hold the bar exam just once a year. This can frustrate applicants because if they fail to pass the exam, which may be required for them to keep or land a job in Delaware, they have to wait a full year before they can try again,” Seitz said.

“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.”

Seitz had launched the diversity project in 2021 with then-Associate Justice Tamika Montgomery-Reeves, who was the first Black justice on the Delaware Supreme Court. She recently joined the Third U.S. Circuit of Appeals in Philadelphia.

Her departure, and the upcoming retirement in May of Associate Justice James T. Vaughn Jr., creates two vacancies on the five-member court. Advocates for more diversity, including civil rights leader Rev. Al Sharpton, have called on Gov. John Carney to fill both slots with justices of color.

The diversity project’s report said that although 22 percent of Delaware’s population is Black, only 16 percent of judges across all courts are Black. The state’s Latino population is 10 percent but only 5 percent of judges are Latino.

The report said “demographic profile data of Delaware attorneys is limited, but indirect data suggest a profession that does not reflect the population.”

‘Signal to talented minority applicants that Delaware is welcoming’

Chuck Durante, president of the Delaware State Bar Association, wholeheartedly welcomes the changes to the exam.

“These changes are designed to remove certain unnecessary impediments to applications to the Delaware bar, to rip some barbed wire from the welcome mat, some traditional barriers that had developed into something quite artificial,’’ said Durante, who is white.

Durante said a once-a-year exam “was probably efficient in 1959” but is no longer prudent or sensible. “That restriction was preventing talented people from even looking at Delaware a second time,’’ Durante said.

He said dropping the passing score by two points is de minimis, calling it the equivalent of “requiring a miler to run a 4:05 rather than a 4:03 to be able to participate in the national championships. It will still result in a highly trained, well-screened set of entrants into the Delaware bar.”

“One still needs to be able to show mastery of material at a high level. One still needs to pass the fitness and character requirements. One still needs to answer, properly, essays on a broad array of topics.

“When you are more welcoming in your structure, then you get a broader array of  talented applicants, including from traditionally underserved communities, including from those who don’t have the financial resources.”

But will the changes actually increase the number of Black and Latino attorneys and jurists?

Durante thinks so.

“There’s no question that this change, as well as other changes in attitudes, behavior, mentoring and structure,’’ he said, “are going to signal to talented minority applicants that Delaware is welcoming all three counties, that this is a good place to grow a career, to raise a family, to make a mark.”

Beyond the structural changes, Durante said, “attitudes must continue to evolve in Delaware. White people generally who have their antennae up, who understand what is happening in society, have learned the meaning of microaggression. They’ve learned the meaning of how to be welcoming, how to be professional, how to make this community better suited for diversity in its professional class, including its lawyers.”

“I’m an optimist because I think the youth get it. And I think middle-aged people are catching on from their younger colleagues.”

There will also be other internal changes to the process. One is partnering with the National Conference of Bar Examiners to compile the “character and fitness” application for would-be attorneys.

Danette Waller McKinley, the Philadelphia-based director of diversity, fairness, and inclusion research for the national bar examiners group, recently wrote about diversity and the bar exam for The Bar Examiner magazine.

McKinley believes the changes in Delaware will “enhance opportunities” for people of color, both to get admitted as a lawyer and then to get on the bench and oversee criminal and civil cases.

“They’re really going to help diversify the folks that can now apply for admittance in the state of Delaware,’’ she said. “I see that this is really going to open Delaware up in a way that they haven’t really done before. So I’m eager to see what the results will be.”

She also expects that reducing the clerkship requirement to a 12-week commitment will “open the door for more people.”

The bottom line, McKinley said, is that “changing some of these requirements, reducing the number of weeks for the clerkship” will make law more attractive to students.

“They’re opening up opportunities to broaden the diversity in the applicants that they get,’’ she said. “And I think that’s what’s going to make a difference here.”