Becoming a lawyer shouldn’t depend on multiple-choice answers

Licensure for new attorneys in South Dakota depends on exam results from essays and timed multiple-choice questions. But the current exams place more emphasis on the wrong portion of the tests. 

An applicant’s ability to quickly select answers preferred by the author of the multiple-choice questions often determines licensure — even where the test-taker provided acceptable legal analyses in response to essay questions. Under this scheme, the skills needed to practice law carry less weight than skills needed to perform well on timed multiple-choice examinations. 

In December, a South Dakota Bar Licensure Assessment overseen by a South Dakota Supreme Court Steering Committee acknowledged this defect: “Nearly all of those who did not pass the bar exam passed the essay portion of the bar, but were unable to pass the multiple-choice portion of the bar exam.”  

Worse, in South Dakota as throughout the nation, the timed multiple-choice portions of the bar examinations block licensure of students whose law school records, other experiences (such as legal internships) and responses to essay questions adequately demonstrate competence to practice law. Moreover, timed multiple-choice questions often ensnare capable individuals from low-income backgrounds, minority students or students with disabilities.

No one is served when competent students — whose varied life experiences enhance the legal profession by bringing firsthand insight into the challenges confronted by so many clients — are prevented from practicing law.

The committee should have assessed the wisdom of continued use of timed multiple-choice questions. Instead, the committee sidestepped the issue, purporting to provide a remedy through public service apprenticeships, which would offer law students seeking to practice public interest law or serve underserved rural areas of the state a fast track to admission without examination. Such apprenticeships, if approved, are laudable but likely difficult to implement and only bypass the real issue.     

The committee work indicates progress, but the primary flaw of the current system remains. There is a growing recognition in the United States that an applicant’s ability to successfully navigate timed multiple-choice questions has no relevance to their ability to competently practice law — and, further, the continued use of such questions negatively impacts qualified minority candidates. 

In the absence of specific corrective measures designed to counteract the perils of timed multiple-choice questions, there will continue to be numerous qualified candidates who are denied licensure in South Dakota. This systemic denial will continue to have an especially discriminatory effect on Native American, other minority and low-income applicants, as well as individuals with reading limitations and disabilities.  

The author wishes to acknowledge the valuable assistance of James Shekleton (counsel for the South Dakota Board of Regents, 1989-2016) in the final preparation of this commentary. The views presented are the author’s only and are not intended to represent the views of the University of South Dakota nor the Board of Regents.