standard might not be sufficient to demonstrate an applicant's competence to practice law.
In July 1974 the Board adopted a method of combining the MBE and essay scores recommended by ETS and NCBE known as the "equi-percentile method." Under this method the scores achieved on the MBE and the essay portions of the examination were placed in percentiles and the original MBE score for any given percentile was translated to the essay score occupying the same percentile; the resulting MBE scores were then averaged with the essay scores to create a so-called "combined" score. For the July 1974 examination, the Board determined that an applicant would pass if he obtained a score of 135 on the MBE alone or a combined score of 55. Of the 1746 people who took the Pennsylvania bar examination in July 1974, 1639 (94%) passed.
Following the July 1974 examination the Board had some question as to the appropriateness of its passing grade of a combined score of 55. Accordingly, it determined that for the February 1975 examination an applicant would pass if he obtained a combined score of 60. No MBE cut-off score was set because the Board determined to have all of the essay examination papers read. Of the 370 people who sat for the Pennsylvania bar examination in February 1975, 244 (66%) passed.
The Board has never raised the combined score passing grade of 60 since February 1975 and believes that achievement of this grade does reflect sufficient competence to practice law. For the July 1975 examination, the Board determined that an applicant would pass if he obtained a score of 135 on the MBE alone as well as if he obtained a combined score of 60. Of the 1649 people who sat for the Pennsylvania bar examination in July 1975, 1389 (84%) passed.
The Board again decided to have all of the essay examination papers read for the February 1976 examination and therefore determined that an applicant would pass only if he obtained a combined score of 60. Of the 555 people who sat for the Pennsylvania bar examination in February 1976, 370 (67%) passed.
For the July 1976 examination, the last examination involved in this litigation, the Board again determined that an applicant would pass if he obtained a score of 135 on the MBE alone or a combined score of 60. Of the 1705 people who sat for the Pennsylvania bar examination in July 1976, 1528 (90%) passed.
The Liacouras Committee Report
As previously stated, in 1970 the Philadelphia Bar Association appointed a committee of three attorneys and two judges to investigate claims of possible discrimination against black law students in bar admissions procedures. The report of that committee, which became known as the Liacouras Committee, stated that the average pass rate for the bar examinations administered between January 1955 and January 1970 was 67.6%, whereas the average pass rate for Blacks during that period was 27.7%. The report detailed the procedures by which the essay questions were devised, administered and graded, and concluded that there were many opportunities during the grading process for the bar examiners and Board members to obtain racial data regarding an applicant and discriminate against that applicant. The Report also raised "grave doubts" concerning the validity of the essay examination. An appendix to the report analyzed the bar examination under equal protection standards and concluded that the examination violated the equal protection clause because it had a disproportionate impact on Blacks.
Commencing in 1971, many changes were made in the bar examination procedures. Candidates were no longer required to state their race on their applications and were no longer required to provide a photograph of themselves. The Board hired black employees and a Black was appointed to the Board. Assigned seating at the examination was also eliminated. The Board not only eliminated all means by which race could be determined, but also adopted the MBE as part of its bar examination because of its belief that Blacks might do better on the examination if they had confidence that their race could not be taken into account in the marking process. Thus since at least the beginning of 1972 no information whatsoever concerning a particular applicant's race has been available to the examiners who grade his paper or to the members of the Board who determine the passing grade on the examination.
The Bernreuter Report
After the July 1972 bar examination, the Board retained Dr. Robert Bernreuter to perform an analysis of the July 1971, February 1972 and July 1972 bar examinations (Exhibits P20, 21 and 25). Dr. Bernreuter performed validity and reliability studies as to the MBE and essay portions of the bar examination, and concluded that both parts of the bar examination possessed sufficient validity and reliability. Dr. Bernreuter concluded:
(T)his analysis of the Pennsylvania Bar Examination has disclosed that the traditional examination has been a valid device for admitting candidates to the Bar. The addition of multiple choice questions has made it an even better test, both in the practical aspect of shortening the time required for reporting the results, but also in the essential aspect of increasing the validity of the test. It is now both "fair" to the candidates, and serviceable in carrying out the desires of the Supreme Court of Pennsylvania for the selection of qualified members of the Pennsylvania Bar.
Exhibit P25, at 539.
Dr. Bernreuter also studied the performance of Blacks on these three examinations. Although the testimony at trial revealed a divergence of opinion as to his conclusions, his report states:
As part of the affirmative action program of the State Board of Bar Examiners, care has been taken to eliminate all possible sources of racial discrimination among candidates. The giving and scoring of both the Essay and the MBE have been done under circumstances that preclude the possibility of bias affecting the results. However, there does remain a difference in the performance of the black and white candidates on both the Essay and on the MBE. Through the cooperation of the black community it was possible to obtain a list of the names of the black candidates, so an analysis has been possible.