OREGON	 2023	
VOLUME	102	
LAW	 NUMBER	1 
REVIEW	
A	rticles 
SCOTT DEVITO* 
The Kids Are Definitely Not All 
Right: An Empirical Study 
Establishing a Statistically Significant 
Negative Relationship Between 
Receiving Accommodations in Law 
School and Passing the Bar Exam 
Introduction .......................................................................................... 2 
I. The Americans with Disabilities Act ........................................ 4 
II. The Bar’s Long History of Exclusion ....................................... 6 
III. The Link Between Accommodations and Bar Passage
Rates ........................................................................................ 15 
A. The Data ........................................................................... 16 
B. A Quick Overview of the Data ........................................ 19 
C. The Model ........................................................................ 20 
IV. Problems and Solutions ........................................................... 23 
[1] 
2 OREGON LAW REVIEW [Vol. 102, 1 
Three weeks ago, we celebrated our nation’s Independence Day. Today 
we’re here to rejoice in and celebrate another “independence day,” 
one that is long overdue. With today’s signing of the landmark 
Americans for Disabilities Act, every man, woman, and child with a 
disability can now pass through once-closed doors into a bright new 
era of equality, independence, and freedom. 
President George H. W. Bush1 
INTRODUCTION 
T hroughout my career as a law professor and a law school dean, I have had a deep interest in the science of learning, academic 
support programs, and law school bar passage programming. Because 
of this, I have noticed that certain categories of students 
underperformed their peers on the bar examination. For example, 
students of color who (based on my interactions with them and their 
law school grades) should have passed the bar exam on their first 
attempt did not, while comparable White students did.2 To investigate 
this phenomenon, my colleagues, Dr. Erin Lain and Dr. Kelsey 
Hample, and I engaged in two empirical analyses that unequivocally 
show that the bar examination produces racially biased outcomes 
(students of color fail at a much higher rate than their White peers).3 
Our most recent study also puts to bed the notion that these differences 
are due to differing credentials between examinees of color and White 
examinees.4 That notion is not true because the difference in outcomes 
* Associate Professor of Law, Jacksonville University College of Law; J.D., University
of Connecticut School of Law; Ph.D. in Philosophy, Rochester University. The Author 
would like to thank Jacksonville University College of Law, Dean Nicholas Allard, and the 
editors of the Oregon Law Review for their support and helpful suggestions on earlier drafts 
of this Article. 
1 George H.W. Bush, U.S. President, Remarks of President George H. W. Bush at the 
Signing of the Americans with Disabilities Act (July 26, 1990), https://archive.ada.gov/ghw 
_bush_ada_remarks.html [https://perma.cc/D95B-VDL3]. 
2 This Article capitalizes all terms that refer to socially constructed race and ethnic 
categories. 
3 Scott DeVito, Kelsey Hample, & Erin Lain, Examining the Bar Exam: An Empirical 
Analysis of Racial Bias in the Uniform Bar Examination, 55 U. MICH. J. L. REFORM 597, 
639 tbl.12 (2022) [hereinafter Examining the Bar Exam]; Scott DeVito, Kelsey Hample, & 
Erin Lain, Onerous Disabilities and Burdens: An Empirical Study of the Bar Examination’s 
Disparate Impact on Applicants from Communities of Color, 44 PACE L. REV. 21–23 figs.1 
& 3, 27 tbl.3, 35–36 tbl.5 (forthcoming 2023) [hereinafter Onerous Disabilities]. 
4 Onerous Disabilities, supra note 3, at 35–36 tbl.5, 37–38 tbl.6, 39–40 tbl.7. 
2023] The Kids Are Definitely Not All Right: An Empirical Study  3 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
is due to something in the exam or the exam process, not differences 
among the students.5  
Similarly, I have noticed that students who received accommodations 
at law school underperformed their unaccommodated peers on the bar 
examination. For example, I had a very bright, dedicated student with 
a physical disability who did not pass the bar exam despite multiple 
attempts. When I spoke to the student after each attempt, I realized that 
the state bar was unwilling to give them appropriate accommodations. 
It was only when the student went to another state, which gave them 
appropriate accommodations, that the student passed the bar 
examination on their first attempt.  
Unfortunately, there has been no publicly available data on the 
relationship between accommodations and bar passage rates. As a 
result, there have also been no published empirical studies of their 
relationship. Fortunately, the American Bar Association (ABA) has 
begun requiring law schools to report the number of students who 
receive accommodations of any type during the reporting year.6 As a 
result, anyone can request that data from public law schools through 
public records requests.  
Using data gathered from sixty public law schools relating to the 
years 2019, 2020, and 2021, this Article demonstrates that there is a 
statistically significant7 negative correlation between the percentage of 
students in a school who receive accommodations and the school’s 
first-time8 bar passage rate. In other words, this study shows that as the 
5 Id. (providing the results of our model of bar pass rates that, controlling for entering 
credentials, region, and tier, showed a different predicted pass rate based on race or 
ethnicity). 
6 See, e.g., SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, ABA, 
COMPLETE 2022 AQ INSTRUCTIONS, at 17, https://www.americanbar.org/content/dam/aba 
/administrative/legal_education_and_admissions_to_the_bar/Questionnaires/2022/complete 
-2022-aq-instructions.docx.
7 All measures of statistical significance discussed in this Article relate to the p value of
a statistical hypothesis. Traditionally, p values of 0.01, 0.05, and 0.10 indicate that a
hypothesis is statistically significant. See DAMODAR N. GUJARATI & DAWN C. PORTER,
ESSENTIALS OF ECONOMETRICS 185 (4th ed. 2010). A p value of 0.01 means that one
percent of the time the reported result would be due to chance, a p value of 0.05 means that
five percent of the time the result would be due to chance, and a p value of 0.10 means that
ten percent of the time the result would be due to chance. DAVID A. HENSHER, JOHN M.
ROSE, & WILLIAM H. GREENE, APPLIED CHOICE ANALYSIS: A PRIMER 45–46 (1st ed.
2005).
8 The analysis showed a similar negative correlation between ultimate bar passage rates,
but because those results were not statistically significant at a p value of at least 0.05, they
4 OREGON LAW REVIEW [Vol. 102, 1 
percentage of accommodated students in a law school increased, its bar 
passage rate decreased. 
This Article establishes a prima facie case that something is wrong 
with the accommodation granting process and argues that state board 
of bar examiners should provide more data and transparency on 
examinee accommodations. This Article begins with a short grounding 
in disability law as it relates to standardized testing. Next, this Article 
examines the exclusionary history of the bar admission process. 
A process that has long been used to exclude “the other,” whether 
they are people of color, women, people with disabilities, or the 
neurodivergent. With this background in hand, this Article provides the 
results of its empirical analysis of accommodation data demonstrating 
a statistically significant, negative correlation between first-time bar 
passage rates and the percentage of students receiving accommodations 
at law school. Finally, the Article ends with a discussion of how we 
should proceed given this result. 
I 
THE AMERICANS WITH DISABILITIES ACT 
The Americans with Disabilities Act (ADA) requires that providers 
of standardized examinations give disabled examinees appropriate 
accommodations for their disability. Congress passed the ADA with 
the primary intent of eliminating employment discrimination against 
individuals with disabilities.9 Nearly twenty years later, Congress 
enacted the ADA Amendments Act of 2008 (ADAAA) to overturn 
three types of errors the courts had made in interpreting the ADA: the 
Supreme Court too narrowly interpreted the definition of “disability,” 
the courts held too high a standard for the degree of functional 
are not included herein. There are multiple potential explanations for this lack of statistical 
significance for ultimate bar passage rates, including students receiving appropriate 
accommodations in subsequent takings of the exam, students requesting accommodations 
in a subsequent exam when they could have received them (but did not) the first time, or 
students learning to succeed despite inadequate or different accommodations from those 
given at law school. Alternatively, the lack of statistical significance could simply be due to 
the limited data and the level of the data (at the school-level, not the student-level) available 
for analysis. Only future studies will enable us to better understand the relationship between 
accommodations and ultimate bar passage rates.  
9 Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified 
at 42 U.S.C. § 12101); Sam L. Bussey, Setting the Bar: Applying a Uniform Standard of 
Documentation in Accommodating Bar Examinees with AD/HD in Compliance with Title 
III of the ADA, 49 VAL. U. L. REV. 997, 1013 (2015); Stacy A. Hickox, The Underwhelming 
Impact of the Americans with Disabilities Act Amendments Act, 40 U. BALT. L. REV. 419, 
423–24 (2011). 
2023] The Kids Are Definitely Not All Right: An Empirical Study  5 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
limitation needed to count as a disability, and the courts placed too 
much emphasis on whether the employer believed that the employee 
had a disability.10 
The ADA defines “disability” as “a physical or mental impairment 
that substantially limits one or more major life activities of such 
individual.”11 Physical and mental impairments include “[a]ny 
physiological disorder or condition, cosmetic disfigurement, or 
anatomical loss affecting one or more body systems,” and “[a]ny 
mental or psychological disorder such as intellectual disability, organic 
brain syndrome, emotional or mental illness, and specific learning 
disability.”12 The ADA inclusively defines “[m]ajor life activities” as 
“caring for oneself, performing manual tasks, seeing, hearing, eating, 
sleeping, walking, standing, lifting, bending, speaking, breathing, 
learning, reading, concentrating, thinking, communicating, and 
working.”13 As noted, learning is specifically identified as a major life 
activity.14  
Consistent with its inclusion of learning-related disabilities, the 
ADA requires private entities offering licensing examinations to offer 
the examination “in a place and manner accessible to persons with 
disabilities or offer alternative accessible arrangements for such 
individuals.”15 This requirement applies to the bar examination.16 In 
addition, the National Conference of Bar Examiners (NCBE), state 
bars, and the state Board of Bar Examiners are each subject to the 
ADA’s examination requirements and may be found liable for 
violations of the ADA.17 
10 U.S. EQUAL EMP. OPPORTUNITY COMM’N, EEOC-NVTA-2011-3, FACT SHEET  
ON THE EEOC’S FINAL REGULATIONS IMPLEMENTING THE ADAAA (May 3, 2011), 
https://www.eeoc.gov/laws/guidance/fact-sheet-eeocs-final-regulations-implementing-adaaa 
[https://perma.cc/V3YR-YU9C]. 
11 42 U.S.C. § 12102(1)(A). 
12 28 C.F.R. § 36.105(b)(1)(i)–(ii). 
13 42 U.S.C. § 12102(2)(A). 
14 Id.; 28 C.F.R. § 36.105(c)(1)(i); Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 
1063 (9th Cir. 2005). 
15 28 C.F.R. § 36.309(a) (2023). 
16 See, e.g., Bartlett v. N.Y. State Bd. of L. Exam’rs, 970 F. Supp. 1094, 1128–9 
(S.D.N.Y. 1997), vacated in part on other grounds, 226 F.3d 69 (2d Cir. 2000).  
17 See, e.g., Enyart v. Nat’l Conf. of Bar Exam’rs, Inc., 823 F. Supp. 2d 995, 999 (N.D. 
Cal. 2011) (noting that the Court had “previously entered two preliminary injunctions . . . 
ordering NCBE to provide [the examinee’s] required accommodations on the” MBE 
and MPRE); see also NAT’L CONF. OF BAR EXAM’RS, MPRE Test Accommodations, 
https://www.ncbex.org/exams/mpre/ada-accommodations/ (last visited Sept. 19, 2023) 
6 OREGON LAW REVIEW [Vol. 102, 1 
Test providers have the burden of providing examinations “so as to 
best ensure that, when the examination is administered to an individual 
with a disability . . . , the examination results accurately reflect the 
individual’s aptitude or achievement level or whatever other factor the 
examination purports to measure, rather than reflecting the individual’s 
[disability].”18 Because the mental health questions on character-and-
fitness questionnaires “screen out or tend to screen out” applicants with 
certain mental health conditions, mental health questions conflict with 
ADA requirements unless state bar associations can prove they are 
“necessary for the provision of the service, program, or activity being 
offered.”19 
II 
THE BAR’S LONG HISTORY OF EXCLUSION 
The bar admissions process has long been used to exclude people 
who were deemed by the profession to be unfit for the practice of law. 
Unfortunately, this effort to prevent unfit practitioners from joining the 
bar has, all too often, been used to exclude people who were “different” 
from then-current bar membership. As discussed below, this has led 
the bar admissions process to exclude communities of color, women, 
people with disabilities, and the nonneurotypical. This history of 
exclusion demonstrates how easily the other can be, and has been, 
excluded from the practice of law. Thus, it opens our eyes to the 
possibility that similar issues are, unconsciously or consciously, arising 
in the context of accommodated students.  
[https://perma.cc/9BQB-SWEQ] (noting that “NCBE is committed to providing reasonable 
accommodations to candidates with documented disabilities in accordance with the 
Americans with Disabilities Act”); Cox v. Ala. State Bar, 330 F. Supp. 2d 1265, 1266 
(M.D. Ala. 2004) (recognizing that the state bar may be liable for violations of the ADA); 
FLA. BD. OF BAR EXAM’RS, General Instructions for Requesting Test Accommodations, 
https://www.floridabarexam.org/__85257bfe0055eb2c.nsf/52286ae9ad5d845185257c0700 
5c3fe1/4483d394bda239a685257c0c00779f16#:~:text=Requests%20for%20test%20acco
mmodations%20and,will%20be%20acknowledged%20by%20mail (last visited Sept. 19, 
2023) [https://perma.cc/H9N4-83SP] (stating that “[i]t is the policy of the Florida Board of 
Bar Examiners to administer the bar examination . . . in accordance with the Americans 
with Disabilities Act”); ARIZ. COMM. ON EXAMINATIONS, Test Accommodation Guidelines 
for Arizona Bar Examination (Nov. 7, 2018), https://www.azcourts.gov/Portals/26 
/admis/GL_WEB/ADA_Guidelines_Revised.pdf?ver=2018-11-07-101415-733 (discussing 
accommodations in light of the ADA). 
18 28 C.F.R. § 36.309(b)(1)(i) (2023); see also Dep’t. of Fair Emp. & Housing v. L. Sch. 
Admission Council Inc., 896 F. Supp. 2d 849, 867 (N.D. Cal. 2012). 
19 Nancy Paine Sabol, Stigmatized by the Bar: An Analysis of Recent Changes to the 
Mental Health Questions on the Character and Fitness Questionnaire, 4 MENTAL HEALTH 
L. & POL’Y J. 1, 11 (2015).
2023] The Kids Are Definitely Not All Right: An Empirical Study  7 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
This practice of excluding the other arose early in the profession’s 
history. One of the earliest instances of such exclusion, which was 
made on the basis of social “class,” can be seen in the English bar’s 
distinction between barristers and solicitors.20 Solicitors were deemed 
the “inferior” branch of the profession and were limited to ministerial 
functions and helping their clients navigate the confusing waters of the 
justice system.21 Barristers, the “superior” branch, represented clients 
in court.22 Because only those of sufficient wealth and social standing 
were permitted to become barristers, this division into barristers and 
solicitors reinforced English notions of class and relegated those 
deemed lesser by the “upper” classes to “inferior” roles in the 
profession.23 This exclusionary approach prevented tradespeople, 
journalists, Catholics, and solicitors from joining the ranks of the 
barrister.24  
The use of class to exclude certain groups of people from becoming 
barristers was reinforced by differences in the promulgation of rules for 
admission. In 1729, as a result of solicitors’ “abysmal level of 
practice,” Parliament passed regulations relating to admission to the bar 
as a solicitor.25 These regulations required that attorneys take an oath 
to “truly and honestly demean [themselves] in the Practice of an 
Attorney according to the best of [their] Knowledge and Ability”26 and 
gave judges the authority to assess a potential solicitor’s “Fitness and 
20 See Judith L. Maute, Alice’s Adventures in Wonderland: Preliminary Reflections on 
the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.), 
71 FORDHAM L. REV. 1357, 1359–60 (2003). Over the long history of the English bar, there 
have been many types of players involved in the practice of law. See, e.g., Carol Rice 
Andrews, Standards of Conduct for Lawyers: An 800-Year Evolution, 57 SMU L. REV. 
1385, 1392 (2004). Nonetheless, the creation of “two distinct branches” of legal 
practitioners (barristers and solicitors) has a long history—emerging in late 1200’s during 
King Edward I’s reign—and provides a sufficient, although simplified, model for our 
discussion. See Maute, supra, at 1360.
21 Andrews, supra note 20, at 1391–92; see also JOHN H. BAKER, AN INTRODUCTION 
TO ENGLISH LEGAL HISTORY 186–87 (3d ed. 1990). 
22 See Andrews, supra note 20, at 1390. 
23 Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491, 
494 (1985). 
24 Id.; 12 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 19, 372 (1938); 
MICHAEL BIRKS, GENTLEMEN OF THE LAW 133 (1960). 
25 See HOLDSWORTH, supra note 24, at 54 n.6; Rhode, supra note 23, at 495. 
26 An Act for the Better Regulation of Attornies and Solicitors 1729, 2 Geo. 2 c. 23 
§ XIII.
8 OREGON LAW REVIEW [Vol. 102, 1 
Capacity to act as a Solicitor.”27 Nearly one hundred years later, 
barristers became subject to informal qualifications of the Inns of 
Court. In 1828, the English Inns of Court adopted a requirement that 
applicants to the Inn provide a signed testimonial from either “one 
bencher or two barristers certifying that the applicant was a fit person 
to be a member of the Inn, and to be called to the bar.”28 This 
requirement likely functioned as a way to “solidify the class bias of the 
admissions structure” and not as a control on moral behavior.29 While 
the Inns of Court did have the ability to regulate their members, such 
regulation was likely limited to issues of etiquette and social status.30  
The American public has long been wary of attorneys and, as a 
consequence, has sought to impose character qualifications on those 
seeking to join the profession. For example, around the time of the 
American Revolution, attorneys “were denounced as banditti, as blood-
suckers, as pick-pockets, as wind-bags, [and] as smooth-tongued 
rogues.”31 Concerns over their practices led to calls for both the 
abolition of the profession and the adoption of character requirements. 
For example, in 1748, Virginia required attorneys applying for 
admission to the bar to present themselves before an “examining 
committee consisting of members of the highest court” who would 
confirm the applicant’s “fitness” and “good moral character.”32 In 
1785, Massachusetts enacted legislation “[t]hat no person shall be 
admitted an Attorney of any Court in this Commonwealth, unless he is 
a good person of good moral character.”33 In 1805, New Jersey’s 
Supreme Court of Judicature adopted a rule requiring that admission to 
the bar be predicated on the applicant having “good moral character.”34 
In May 1837, Rhode Island required persons to have “good moral 
character” for admission to the practice of law.35  
Despite these efforts at ensuring that attorneys possessed good 
character, throughout the Jacksonian Era (1820–1845), attorneys 
27 Id. § IV.  
28 HOLDSWORTH, supra note 24, at 26. 
29 Rhode, supra note 23, at 495. 
30 Id. 
31 1 JOHN BACH MCMASTER, A HISTORY OF THE PEOPLE OF THE UNITED STATES, 
FROM THE REVOLUTION TO THE CIVIL WAR 302 (New York, D. Appleton & Co. 1885). 
32 Anton-Hermann Chroust, The Legal Profession in Colonial America, 34 NOTRE 
DAME L. REV. 44, 50–51, 50 n.40 (1958). 
33 1785 Mass. Acts, 475; see also W. Raymond Blackard, Requirements for Admission 
to the Bar in Revolutionary America, 15 TENN. L. REV. 116, 118 (1938). 
34 Blackard, supra note 33, at 123. 
35 Id. at 121–22. 
2023] The Kids Are Definitely Not All Right: An Empirical Study  9 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
continued to fall into disrepute36 (thereby supporting ongoing calls for 
character requirements).37 For example, P. W. Grayson described 
lawyers as “[a] class of men . . . whom we find swarming in every hole 
and corner of society” and who give aid to men who are “apt enough 
to exert all their craft in turning the laws to their own advantage.”38 
Grayson further describes attorneys as “seeds of depravity” who shoot 
out malignant beams “over the whole surface of society, shedding upon 
it the pestilence of discord, strife, and injustice!”39  
The net effect of this disdain for lawyers combined with the 
Jacksonian view that everyone had a “natural right . . . to pursue any 
lawful calling of his choice” led state legislatures to eliminate 
educational qualifications for those practicing law and, instead, require 
those seeking admission to the state bar both to be residents of the state 
and to have good moral character.40 Massachusetts, New Hampshire, 
Maine, Wisconsin, and Indiana allowed state citizens to apply for 
admission to the practice (without regard to educational qualifications) 
if they could prove “good moral character.”41 
Character and fitness requirements were quickly turned to exclude 
people simply because they were members of a particular group. For 
example, while there is little evidence that requirements of good moral 
character were used to keep men, as a group, out of the profession, they 
were used to keep women out.42 In 1872, the Supreme Court prevented 
Myra Bradwell from joining the Illinois bar because married women 
could not enter contracts without their husband’s consent and because 
“[t]he paramount destiny and mission of wom[e]n are to fulfil the . . . 
offices of wife and mother.”43 Justice Bradley further noted, “[I]t is 
within the province of the legislature to ordain what offices, positions, 
and callings shall be filled and discharged by men, and shall receive the 
36 Anton-Hermann Chroust, The American Legal Profession: Its Agony and Ecstasy 
(1776-1840), 46 NOTRE DAME L. REV. 487, 512–21 (1971). 
37 Id. at 521–22. 
38 P.W. GRAYSON, VICE UNMASKED, AN ESSAY: BEING A CONSIDERATION OF THE 
INFLUENCE OF LAW UPON THE MORAL ESSENCE OF MAN, WITH OTHER REFLECTIONS 91 
(New York, George H. Evans 1830), reprinted in part in THE LEGAL MIND IN AMERICA: 
FROM INDEPENDENCE TO THE CIVIL WAR 193 (Perry Miller ed., 1962). 
39 Id. 
40 Chroust, supra note 36, at 521. 
41 Id. at 522. 
42 Rhode, supra note 23, at 497. 
43 Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring). 
10 OREGON LAW REVIEW [Vol. 102, 1 
benefit of those energies and responsibilities, and that decision and 
firmness which are presumed to predominate in the sterner sex.”44 The 
Supreme Court of Wisconsin agreed, noting that the profession of the 
law is “inconsistent with [the] sacred duties of their [female] sex.”45 
In addition, bar admission requirements were used to keep Black 
Americans from entering the profession.46 It was only in 1844 that 
the first Black American, Malcom B. Allen, was admitted to practice 
law in the United States (in Maine).47 After the Civil War, bias 
against Black Americans was evident in the need to create “mission” 
colleges for Black law students due to the refusal of many established 
law schools (especially, but not limited to, those in the segregated 
South) to allow them admission.48 These mission schools were the 
consequence of the “‘separate but equal’ principle.”49 As a result, they 
were poorly funded and maintained only to the degree necessary to 
meet the bare requirements of the principle.50 In addition, the early 
twentieth century push for higher entering standards for law school had 
a direct and deleterious impact on Black law students, decreasing the 
number of Black students enrolled in law school from forty-one in 1914 
to just four in 1936.51  
In the decades leading up to the early 1900s, moral qualifications 
rose in importance as a means to exclude the other.52 At that time, a 
number of states adopted different measures to ensure that candidates 
had good moral character, including 
(1) Formal certificates of character from citizens, attorneys or judges;
(2) recommendation by the local Bar Association; (3) certification of
character by the local court of the applicant’s residence; (4) public
registration of the applicant upon beginning his study of the law;
44 Id. at 142. 
45 In re Goodell, 39 Wis. 232, 245 (1875). 
46 See Onerous Disabilities, supra note 3, at 14–18, for a detailed discussion of this 
history. 
47 Horace Mann Bond, The Negro Scholar and Professional in America, in THE 
AMERICAN NEGRO REFERENCE BOOK 581 (John P. Davis ed., 1966) (noting that Mr. Allen 
was admitted to practice in Maine); Edward J. Littlejohn & Donald L. Hobson, Black 
Lawyers, Law Practice, and Bar Associations—1844 to 1970: A Michigan History, 33 
WAYNE L. REV. 1625, 1629 (1987) (explaining that Mr. Allen read the law). 
48 See Bond, supra note 47, at 582 (in this context a mission school is a school whose 
mission is to educate Black students). 
49 Littlejohn & Hobson, supra note 47, at 1630. 
50 Id.  
51 See Onerous Disabilities, supra note 3, at 10–11 tbl.2. 
52 See Clarence A. Lightner, A More Complete Inquiry into the Moral Character of 
Applicants for Admission to the Bar, 21 L. STUDENT’S HELPER 5, 5 (1913). 
2023] The Kids Are Definitely Not All Right: An Empirical Study  11 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
(5) publication of the intended application for admission; (6) an
affidavit by the applicant that he has read the Bar’s code of ethics;
(7) admission upon probation for a year, more or less, applied
especially to foreign attorneys; (8) investigation of character by the
court of last resort or by its clerk, and (9) a special character
committee.53
Legal scholars have shown that these changes were intended to restrict 
immigrants and people of color from joining the profession.54 During 
this period, the ABA was an all-White organization, which actively 
excluded persons of color from joining.55 When the ABA mistakenly 
admitted three Black lawyers in 1912, it justified revoking their 
admission by explaining that it wanted to keep “pure the Anglo-Saxon 
race.”56 Professor Friedman explains that the ABA’s efforts to develop 
formal bar admission requirements were heavily influenced by the 
pervasive exclusionary beliefs of ABA members and leadership.57
Only after 1944 did the ABA stop requiring applicants to list race on 
their application.58 The ABA was not alone in its efforts to maintain an 
all-White profession.59  
Professor Subotnik demonstrated that this renewed emphasis on 
an applicant’s “qualifications” was a proxy for anti-immigrant/anti-
53 Id. at 7. 
54 See, e.g., RICHARD L. ABEL, AMERICAN LAWYERS 85 (1989); Dan Subotnik, Does 
Testing = Race Discrimination?: Ricci, the Bar Exam, the LSAT, and the Challenge to 
Learning, 8 U. MASS. L. REV. 332, 365 (2013); Daria Roithmayr, Deconstructing the 
Distinction Between Bias and Merit, 10 LA RAZA L.J. 363, 392–93 (1998). 
55 See Subotnik, supra note 54, at 365–66 (discussing the history of law school 
admission standards). 
56 Id.  
57 LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 648–54 (2d ed. 1985). 
58 GERALDINE R. SEGAL, BLACKS IN THE LAW: PHILADELPHIA AND THE NATION 1 
(1983). 
59 In 1925, Texas passed a law limiting law school admission to White students. See 
Sweatt v. Painter, 339 U.S. 629, 631 n.1 (1950) (“It appears that the University has been 
restricted to white students, in accordance with the State law.” (citing TEX. CONST. art. VII, 
§§ 7, 14; TEX. REV. CIV. STAT. ANN. art. 2643b (West 1925) (repealed 1971); TEX. REV.
CIV. STAT. ANN. art. 2719 (repealed 1969); TEX. REV. CIV. STAT. ANN. art. 2900 (West
1925) (repealed 1969))). “As late as 1938, the University of Missouri Law School continued
to formally exclude Black applicants on the grounds that ‘it was “contrary to the
constitution, laws and public policy of the State to admit a negro as a student in the
University of Missouri.’” Roithmayr, supra note 54, at 399 (quoting Missouri ex rel. Gaines
v. Canada, 305 U.S. 337, 343 (1938)). It was only in 1964 that the Association of American
Law Schools (AALS) could report that its member schools no longer used race to deny
admission. Littlejohn & Hobson, supra note 47, at 1631.
12 OREGON LAW REVIEW [Vol. 102, 1 
community-of-color bias.60 Critical race theorist Professor Roithmayr 
adds that leaders in the legal profession were troubled by the possibility 
of immigrants and non-Whites entering the field.61 Elihu Root’s 
address to the Conference of Bar Associations on February 23, 1922, 
where he argued against immigrants in the bar, is a good example of 
this anti-immigrant bias.62 In addition, Yale Law School’s quota 
limiting admission of Jewish persons, in force from 1922 to 1960, is a 
clear example of anti-Semitic bias.63  
The character-and-fitness process has also been used to keep people 
with controversial political backgrounds out of the bar. In the 1950s 
and 1960s, an applicant’s affiliation with communist associations or 
their refusal to answer questions regarding such affiliations resulted in 
state bars refusing to admit them due to a lack of good moral 
character.64  
In addition, a person’s neurodiversity has been used to delay or deny 
admission to the bar. For example, Kathy Flaherty, a graduate of 
Harvard Law School and member of both the New York and 
Massachusetts bars, was initially denied admission to the Connecticut 
bar due to Flaherty having bipolar disorder.65 After a year of hearings, 
Flaherty was admitted conditionally (renewed annually for nine years) 
despite a lack of character-and-fitness issues other than her (well-
managed) bipolar disorder.66 
In 2018, Above the Law published an article about an attorney it 
called “Atticus Finch” to protect his identity.67 Mr. Finch submitted his 
character-and-fitness application and properly disclosed legal issues he 
60 Subotnik, supra note 54, at 365. 
61 Roithmayr, supra note 54, at 392–93 (discussing the history of law school admission 
standards). 
62 See Elihu Root, Chairman, Address of Elihu Root, Conference of Bar Association 
Delegates Held Under Auspices of the American Bar Association 21 (February 23 & 24, 
1922). 
63 ABEL, supra note 54, at 85. 
64 See Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 238 (1957); Konigsberg 
v. State Bar of Cal., 353 U.S. 252, 266 (1957); In re Anastaplo, 163 N.E.2d 429, 430 (Ill.
1959); Baird v. State Bar of Ariz., 401 U.S. 1, 4–5 (1971); In re Stolar, 401 U.S. 23, 26–27
(1971). See generally Theresa Keeley, Comment, Good Moral Character: Already an
Unconstitutionally Vague Concept and Now Putting Bar Applicants in a Post-9/11 World
on an Elevated Threat Level, 6 U. PA. J. CONST. L. 844, 847–52 (2004).
65 Lindsey Ruta Lusk, The Poison of Propensity: How Character and Fitness Sacrifices 
the “Others” in the Name of “Protection,” 2018 U. ILL. L. REV. 345, 347 (2018). 
66 Id. 
67 Brian Cuban, When Bar Examiners Become Mental Health Experts, ABOVE THE LAW 
(Jan. 10, 2018, 10:03 AM), https://abovethelaw.com/2018/01/when-bar-examiners-become 
-mental-health-experts/ [https://perma.cc/DE3J-5EGE].
2023] The Kids Are Definitely Not All Right: An Empirical Study  13 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
had experienced.68 Having been called to an interview, Mr. Finch was 
asked whether his parents were divorced, whether he was seeing a 
psychologist, and for a list of medications he was currently taking.69
Mr. Finch advised the committee that his parents were divorced and 
that he was seeking the advice of a psychiatrist to identify and prescribe 
appropriate medication for Finch’s attention deficit hyperactivity 
disorder (ADHD).70 Finch was then asked to “meet with the Character 
and Fitness psychiatrist for a mental evaluation to see if he was 
‘prepared to practice.’”71 He was also required to undergo six months 
of weekly therapy appointments with monthly progress reports sent to 
the committee.72  
The courts and the Department of Justice (DOJ) have increasingly 
scrutinized state bar inquiries into an applicant’s mental health. For 
example, the Eastern District of Virginia struck down a question that 
asked, “Have you within the past five (5) years been treated or 
counselled for any mental, emotional or nervous disorders?” on the 
grounds that it violated the ADA.73 In addition, in 2011, the DOJ 
investigated the Louisiana Bar’s use of the NCBE Character and 
Fitness Report Request Form.74 The DOJ found that questions 25, 26A, 
68 Id. 
69 Id. 
70 Id. 
71 Id. 
72 Id. 
73 Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430, 431 (E.D. Va. 1995). 
74 Emily C. Maurice, South Dakota’s Bar Admission Requirements: A Critical Analysis 
of the Deficiencies in South Dakota’s Bar Application Relating to Mental Health Diagnoses, 
61 S.D. L. REV. 139, 145 (2016). 
14 OREGON LAW REVIEW [Vol. 102, 1 
26B, and 2775 violated the ADA because they were each “based on 
stereotypes and assumptions about disabilities.”76 
Given this long history of exclusion and suspicion of mental health 
issues, it is not surprising that state bar boards have also been reluctant 
to grant bar applicants accommodations on the bar examination even 
after passage of the ADA. For example, in 1994, the Delaware Board 
of Bar Examiners granted Kara B. Rubenstein extended time for the 
essay portion of the bar examination due to her learning disability 
but refused to provide extended time for the Multistate Bar Exam 
(the multiple-choice section of the exam); however, the expert’s 
accommodation recommendation contained no distinction between the 
essay and multiple-choice sections.77 The Delaware Supreme Court 
overruled the Board on the grounds that their decision was manifestly 
unfair.78 Similarly, Marilyn J. Bartlett was denied accommodations on 
the bar examination despite expert testimony that she had a learning 
disability.79 In 2011, the NCBE refused to provide Timothy Elder, 
a blind examinee, the computer and software necessary for Elder 
to access the MBE portion of the February 2011 California bar 
examination.80 Elder requested that the court grant a temporary 
restraining order enjoining the NCBE from refusing to allow him to 
75 Question 25 asked, “Within the past five years, have you been diagnosed with or have 
you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic 
disorder?” Question 26A asked, “Do you currently have any condition or impairment 
(including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or 
nervous disorder or condition) which in any way currently affects, or if untreated could 
affect, your ability to practice law in a competent and professional manner?” while Question 
26B asked, “If your answer to Question 26(A) is yes, are the limitations caused by your 
mental health condition . . . reduced or ameliorated because you receive ongoing treatment 
(with or without medication) or because you participate in a monitoring program?” Question 
27 asked, “Within the past five years, have you ever raised the issue of consumption of drugs 
or alcohol or the issue of a mental, emotional, nervous, or behavioral disorder or condition 
as a defense, mitigation, or explanation for your actions in the course of any administrative 
or judicial proceeding or investigation; any inquiry or other proceeding; or any proposed 
termination by an educational institution, employer, government agency, professional 
organization, or licensing authority?” Id. at 145–46. 
76 Id. at 146. 
77 In re Rubenstein, 637 A.2d 1131, 1134, 1138 (Del. 1994).  
78 Id. at 1140. 
79 Bartlett v. N.Y. State Bd. of L. Exam’rs, 970 F. Supp. 1094, 1103, 1106 (S.D.N.Y. 
1997), vacated in part on other grounds, 226 F.3d 69 (2d Cir. 2000). 
80 See Plaintiff’s Notice of Motion and Motion for Temporary Restraining Order and 
Order to Show Cause; Notice of Motion and Motion for Preliminary Injunction and 
Memorandum of Points and Authorities in Support, Elder v. Nat’l Conf. of Bar Exam’rs, 
No. 11-00199, 2011 WL 4079623 (N.D. Cal. Sept. 12, 2011), 2011 WL 204135. 
2023] The Kids Are Definitely Not All Right: An Empirical Study  15 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
use this software and a computer.81 Granting Elder’s request, the 
court ordered the NCBE to provide Mr. Elder with the relevant 
accommodation.82  
Boards of Bar Examiners have also been inconsistent in granting 
accommodations to applicants with disabilities. For example, TW 
received “50 percent extra time, off-the-clock breaks, and a separate 
testing room” as a student at Harvard Law School due to “her 
depression, anxiety, and panic attacks, as well as deficits in short-term 
memory and ‘solving of complex abstract problems.’”83 Over the 
course of multiple attempts to pass the bar examination, her state bar 
examiners (1) denied her any accommodations, (2) gave her off-the-
clock breaks and seating in a smaller nonprivate room, (3) gave her 
50% extra time and seating in the small room but not the off-the-clock 
breaks she had received previously, and (4) gave her just double time.84 
Given the legal profession’s long history of excluding people from 
the practice of law based on bias and the difficulty applicants have had 
in securing ADA-mandated accommodations for the bar examination, 
we should be concerned that the bar is not providing applicants with 
appropriate accommodations. In addition, this concern requires us to 
empirically assess the relationship between bar passage and 
accommodations to ensure bar examinations are given in a manner 
consistent with the ADA. 
III 
THE LINK BETWEEN ACCOMMODATIONS AND BAR PASSAGE RATES 
There are currently no empirical studies of the correlation between 
a bar examinee’s probability of passing the bar exam and that 
examinee’s accommodations status. This is not due to a lack of interest, 
but rather to a lack of data. The ABA, law schools, and state 
bar examiners do not publicly release any information as to the 
distribution of accommodations granted, the frequency of denying 
accommodations, and the bar passage rate for students receiving a 
given class of accommodations. As a result, no data currently exists 
81 Id. 
82 Elder v. Nat’l Conf. of Bar Exam’rs, No. 11-00199, 2011 WL 4079623, at *1 (N.D. 
Cal. Sept. 12, 2011). 
83 T.W. v. N.Y. State Bd. of L. Exam’rs, No. 16-3029, 2017 WL 4296731, at *1 
(E.D.N.Y. 2017). 
84 Id. at *1–2. 
16 OREGON LAW REVIEW [Vol. 102, 1 
that could help establish whether bar pass and accommodation 
status are related. Fortunately, the ABA now requires law schools to 
report the number of students enrolled each year who received 
accommodations at some point during that year.85 Law schools are not 
required to make such data publicly available86 but, as discussed 
below, it can be accessed through public records requests to public law 
schools. The analysis of this data shows that there is a statistically 
significant negative correlation between a law school’s percentage of 
students receiving accommodations in a year and the school’s first-time 
bar passage rates in that year. 
A. The Data
To gather data relating to the number of accommodated students, 
I filed public records requests with sixty public law schools asking 
for the number of accommodated students in 2019, 2020, and 2021. 
Of the sixty schools, four refused or failed to provide any data as to 
the number of students accommodated. To aid further research, the 
data gathered, along with each school’s total reported enrollment 
that year, is provided in Table 1. A negative one (−1) in the columns 
for number of accommodated students indicates that, despite the 
 public records request, the school did not provide the number of 
accommodated students for that year.  
For each school and year, the data set included the school’s 50th 
percentile LSAT, 50th percentile undergraduate grade point average 
(UGPA), and the percentage of enrolled students from communities of 
color. These indicators were chosen because prior work has shown that 
these are all relevant to a school’s bar passage rate87 and because that 
data is publicly available on the ABA’s Required Disclosures page.88  
85 SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, supra note 6, at 22. 
86 See SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, ABA, 
STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAW SCHOOLS 2022-2023, 
at 38 (2022), https://www.americanbar.org/content/dam/aba/administrative/legal_education 
_and_admissions_to_the_bar/standards/2022-2023/2022-2023-standards-and-rules-of 
-procedure.pdf.
87 See Examining the Bar Exam, supra note 3, at 639 tbl.12; Onerous Disabilities, supra
note 3, at 35–36 tbl.5.
88 ABA Required Disclosures, ABA: SECTION OF LEGAL EDUC. AND ADMISSIONS TO 
THE BAR, https://www.abarequireddisclosures.org/Disclosure509.aspx (last visited Sept.
19, 2023) [https://perma.cc/MQR9-J3RK].
2023] The Kids Are Definitely Not All Right: An Empirical Study  17 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
Table 1. Total Students and Number of Accommodated Students 2019–2021 
2019 2020 2021 
School Name Total   Acc. Total  Acc. Total  Acc. 
Arizona State U 812 64 798 81 850 93 
City U of New York 622 98 672 71 696 65 
Cleveland State U 403 42 431 53 420 62 
Florida A&M U 563 61 472 50 416 56 
Florida International U 465 36 509 50 542 74 
Florida State U 605 21 612 37 572 53 
Georgia State U 656 39 679 35 713 41 
Indiana U-Bloomington 511 23 534 24 558 27 
Louisiana State U 571 60 594 70 618 70 
Michigan State U 698 47 632 38 665 46 
North Carolina Central U 364 66 405 69 460 84 
Northern Illinois U 279 21 307 27 322 25 
Ohio State U 577 −1 551 −1 559 −1
Rutgers U 1206 70 1262 106 1346 129 
Southern Illinois U-Carbondale 254 31 237 42 246 56 
Texas A&M U 480 43 515 62 522 99 
Texas Southern U 577 30 536 25 544 35 
U of Akron 416 −1 428 −1 416 −1
U of Arizona 375 45 392 51 395 64 
U of Baltimore 668 72 702 68 698 72 
U of Buffalo-SUNY 431 30 444 35 465 37 
U of California LA 975 133 1002 143 1038 177 
U of California-Davis 592 43 622 55 668 72 
U of California-Hastings 945 187 989 224 1087 232 
U of California-Irvine 519 93 500 119 443 113 
U of Cincinnati 363 25 394 22 392 29 
U of Colorado 526 30 522 35 512 45 
U of Connecticut 468 −1 488 −1 490 −1
U of Florida 780 73 722 92 703 135 
U of Georgia 586 40 578 54 571 61 
Cont’d on next page 
18 OREGON LAW REVIEW [Vol. 102, 1 
2019 2020 2021 
School Name Total   Acc. Total  Acc. Total  Acc. 
U of Hawaii 330 29 339 46 331 43 
U of Houston 679 55 685 60 729 71 
U of Idaho 333 40 462 45 437 66 
U of Illinois 399 12 408 15 492 19 
U of Iowa 431 21 473 22 500 30 
U of Kansas 311 18 305 15 315 21 
U of Kentucky 348 33 365 29 369 38 
U of Maine 253 22 254 20 258 25 
U of Massachusetts Dartmouth 280 29 358 28 365 45 
U of Minnesota 667 58 674 50 677 67 
U of Mississippi 412 31 464 30 491 54 
U of Missouri 273 17 299 14 346 17 
U of Missouri-Kansas City 372 28 398 26 401 37 
U of Montana 234 −1 257 −1 248 −1
U of Nebraska 391 26 398 35 438 37 
U of Nevada Las Vegas 444 31 445 37 449 46 
U of New Hampshire 305 19 407 28 512 38 
U of New Mexico 310 28 291 25 294 16 
U of North Carolina 600 56 589 57 589 67 
U of North Dakota 206 25 218 23 235 23 
U of Oklahoma 500 22 512 23 546 30 
U of Oregon 412 28 435 50 474 63 
U of South Carolina 633 66 635 69 633 68 
U of Texas at Austin 985 48 965 77 1001 106 
U of Toledo 278 29 302 26 371 39 
U of Utah 292 13 290 26 288 33 
U of Washington 493 45 500 49 492 56 
U of Wyoming 226 6 230 4 229 4 
UNT Dallas College of Law 375 48 389 47 380 38 
West Virginia U 329 18 326 30 333 46 
The data as to LSAT, UGPA, and percentage from communities of 
color was offset by three years from the bar exam in order to gather 
those factors relative to the year the typical bar examinee would have 
enrolled in law school. For example, the 2020 first-time pass rate is 
2023] The Kids Are Definitely Not All Right: An Empirical Study  19 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
connected with that class’s (2017) entering credentials and racial 
demographics.  
B. A Quick Overview of the Data
Before discussing the statistical analysis, it is worthwhile to engage 
in a simple overview of the data.89 The first thing to note in Table 2 is 
that the average and maximum percentage of students who were given 
accommodations increased from 2019 to 2021. 
Table 2. Percent Accommodated Students By Year 
Minimum Average Maximum 
Year % Accommodated % Accommodated % Accommodated 
2019 2.65%   8.60% 19.79% 
2020 1.74%   9.28% 23.80% 
2021 1.75% 10.94% 25.51% 
These changes corresponded to an increase in the total number of 
accommodated students as shown in Table 3. 
Table 3. Number of Accommodated Students By Year 
Total Average # of 
Year Accommodated Students Accommodated Students 
2019 2,424 43.29 
2020 2,674 48.62 
2021 3,295 58.84 
In Figure 1,90 we can also see the appearance of a negative correlation 
between first-time bar passage rate and percentage of the student body 
receiving accommodations. 
89 See, e.g., FREDERICK HARTWIG & BRIAN E. DEARING, EXPLORATORY DATA 
ANALYSIS 9 (1979) (recognizing the importance of an exploratory approach to data 
analysis); LES KIRKUP, DATA ANALYSIS WITH EXCEL: AN INTRODUCTION FOR PHYSICAL 
SCIENTISTS 14 (2002) (discussing the value of picturing experimental data). 
90 In a scatterplot, each pair of data points, in our case first-time bar passage and 
percentage accommodated, is represented as a single “dot” on an X- and Y-axis. See 
HARTWIG & DEARING, supra note 89, at 33. In our case, the axes represent first-time bar 
passage and percentage accommodated. Further, each datapoint for 2019 is represented by 
an empty square, each datapoint for 2020 is represented by an empty circle, and each 
datapoint for 2021 is represented by an empty triangle. 
20 OREGON LAW REVIEW [Vol. 102, 1 
Figure 1. Scatterplot of First-Time Bar Pass Rate and Percentage of Students 
Receiving Accommodations 
100%
90%
80%
70%
60%
50%
40%
0% 5% 10% 15% 20% 25% 30%
Percentage of Student Body That Received Accommodations
2019 2020 2021
C. The Model
When the data is restricted to the unit interval (between 0 and 1), as 
with school bar passage rates (which are between 0% and 100%), we 
can use a regression analysis of the log odds ratio of the bar passage 
rate to estimate the relationship between the school’s bar passage 
rate and its percentage of accommodated students; see Figure 2.91 The 
scatterplot of the log odds ratio is similar to that of Figure 1. 
91 Fractional logistic models provide a good fit to data, like the bar passage rates, where 
the dependent variable must fall within the unit interval (between 0 and 1). See JEFFREY M. 
WOOLDRIDGE, ECONOMETRIC ANALYSIS OF CROSS SECTION AND PANEL DATA 661–62 
(2002) (discussing fractional logit regression and log odds ratios).  
First-Time Bar Pass Rate
2023] The Kids Are Definitely Not All Right: An Empirical Study  21 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
Figure 2. Log Odds Ratio First-Time Bar Passage Rate and Percent Accom-
modated 
5
4.5
4
3.5
3
2.5
2
1.5
1
0.5
0
-0.5 0 0.2 0.4 0.6 0.8 1
Percent Accommodated
Because a law school class’s entering credentials (50th percentile 
LSAT score, 50th percentile UGPA) are correlated with bar passage 
rates,92 those credentials are incorporated into our model and analysis. 
In addition, in prior work, we have established that increasing the 
percentage of students from communities of color decreases a school’s 
bar passage rates.93 As a result, the model also includes a variable 
for the percentage of enrolled students in a school (and year) that self-
identify as members of communities of color. This produces an 
empirical model represented by the following equation: 
92 See, e.g., Examining the Bar Exam, supra note 3, at 639 tbl.12; Onerous Disabilities, 
supra note 3, at 35–36 tbl.5. 
93 See, e.g., Examining the Bar Exam, supra note 3, at 639 tbl.12; Onerous Disabilities, 
supra note 3, at 35–36 tbl.5. It is my contention that such disparities are due to problems 
with the exam, not with the examinees. 
Log Odds Ratio of FT Bar Pass Rate
22 OREGON LAW REVIEW [Vol. 102, 1 
𝑷𝒂𝒔𝒔𝒊𝒏𝒈𝑹𝒂𝒕𝒆𝒔,𝒚
= 𝛽$ + 𝛽%𝑃𝑒𝑟𝐴𝑐𝑐𝑜𝑚&,' + 𝛽(𝑀𝑒𝑑𝑖𝑎𝑛𝐿𝑆𝐴𝑇&,)*
+ 𝛽+𝑀𝑒𝑑𝑖𝑎𝑛𝑈𝐺𝑃𝐴&,'* 	+ 𝛽,𝑃𝑒𝑟𝐵𝐼𝑃𝑂𝐶&,'* + 𝜇
where  
𝑷𝒂𝒔𝒔𝒊𝒏𝒈𝑹𝒂𝒕𝒆𝒔,𝒚 is the log odds ratio of the first-time bar pas-
sage rate for school s in year y;  
𝜷𝟎 is the y-intercept;  
𝜷𝟏 – 𝜷𝟒 are the correlation coefficients for the variables that im-
mediately follow them;  
𝑷𝒆𝒓𝑨𝒄𝒄𝒐𝒎𝒔,𝒚 is the percentage of students in school s who re-
ceived accommodations in year y; 
𝑴𝒆𝒅𝒊𝒂𝒏𝑳𝑺𝑨𝑻𝒔,𝐲* is the median LSAT for school s in year y-3; 
𝑴𝒆𝒅𝒊𝒂𝒏𝑼𝑮𝑷𝑨𝒔,𝐲* is the median entering UGPA for school s in 
year y-3; 
𝑷𝒆𝒓𝑩𝑰𝑷𝑶𝑪𝒔,𝒚* is the percentage of students who self-identify as 
American Indian/Alaska Native, Asian/Pacific Islander, Black, or 
Hispanic at school s in year y-3; and 
𝝁 is the error term. 
Using this equation, we engaged in a series of linear regression 
analyses starting with a naïve model in which only the percentage 
accommodated was included as an independent variable. This was 
followed by a credential model in which percentage accommodated, 
50th percentile UGPA, and 50th percentile LSAT were the independent 
variables. Finally, we analyzed the complete model in which 
percentage accommodated, 50th percentile UGPA, 50th percentile 
LSAT, and percentage from communities of color were the 
independent variables.  
Linear regression provides us with a curve of best fit describing the 
average relationship of the independent and dependent variables.94 This 
curve of best fit does not (in general) perfectly overlap the data 
points.95 As a result, the curve of best fit is only an approximation of 
the true value.96 Whenever the curve of best fit does not overlap with a 
data point, we measure the distance (error) between the log odds ratio 
94 See, e.g., Jeffrey S. Kinsler & Jeffrey Omar Usman, Law Schools, Bar Passage, and 
Under and Over-Performing Expectations, 36 QUINNIPIAC L. REV. 183, 198 (2018). 
95 See, e.g., Daniel J. McGarvey & Brett Marshall, Making Sense of Scientists and 
“Sound Science”: Truth and Consequences for Endangered Species in the Klamath Basin 
and Beyond, 32 ECOLOGY L.Q. 73, 90 n.81 (2005) (discussing how data points will lie above 
and below the regression line).  
96 See Kinsler & Usman, supra note 94, at 198. 
2023] The Kids Are Definitely Not All Right: An Empirical Study  23 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
first-time bar pass rate predicted by our curve of best fit and the actual 
log odds ratio first-time bar pass rate for that school and year.97
Measuring those errors provides us with an “R-squared” value that 
indicates how well the curve of best fit describes the relationship.98 As 
can be seen in Table 4 below, as we move from the naïve model to the 
complete model, the R-squared value rises from 0.03 to 0.51, indicating 
that the complete model most fully captures bar passage rates. 
Table 4. Models for Log Odds Ratio First-Time Bar Pass Rate99 
Naïve Credentials Complete 
Independent Variable Model Model Model 
% Accommodated −1.12** −0.97*** −0.82**
Median LSAT 0.06*** 0.06*** 
Median UGPA 1.24** 1.16** 
% from Community of Color 0.74** 
Constant 2.02 −11.80 0.82 
# of Observations 166 166 166 
Adjusted R2 0.03 0.50 0.51 
As we can see, our analysis found—in all models—that there is a 
statistically significant negative correlation between the percentage of 
enrolled students who receive accommodations and a school’s first-
time pass rate. In other words, as the percentage of accommodated 
students rose, the school’s first-time bar pass rate fell. 
IV 
PROBLEMS AND SOLUTIONS 
To enable us to better understand precisely why the granting of 
accommodations in law school is negatively correlated with bar 
passage, the ABA, law schools, and the state board of bar examiners 
97 See DAMODAR GUJARATI, ECONOMETRICS BY EXAMPLE 13–14 (2011) (discussing 
R2 as a measure of goodness of fit). 
98 Id. at 43–44. 
99 A single asterisk (*) means that the model is 90% confident that the relationship 
between that independent variable and pass rate exists and is therefore different from 0; two 
asterisks (**) indicate that the model is 95% confident that the relationship exists; three 
asterisks (***) indicate that the model is 99% confident. We draw conclusions only from 
coefficients marked with asterisks because of these very high levels of confidence. 
24 OREGON LAW REVIEW [Vol. 102, 1 
for each jurisdiction must provide more data for independent 
researchers to analyze. 
At the most basic level, the results of this Article’s empirical study 
demonstrate that as accommodation rates increase, first-time bar 
passage rates decline. Under the ADA, test providers have the burden 
of administering exams so that the “results accurately reflect the 
individual’s aptitude or achievement level or whatever other factor 
the examination purports to measure, rather than reflecting the 
individual’s” disability.100 The results of this empirical study provide 
evidence that the bar examination’s results may be reflecting an 
individual’s disability, not their aptitude. This result should raise alarm 
bells among law students, law schools, the state bar associations, the 
NCBE, the ABA, and the DOJ. It should also demonstrate to the legal 
community that we need more transparency and data relating to 
accommodations in law school and on the bar examination.  
Importantly, because of the high level of the data, this result 
does not establish the cause of the negative impact of receiving 
accommodations in law school on one’s probability of passing the bar 
exam. This effect could arise at the level of the bar examination, the 
law school, or the student. Even if we assume the problem arises as a 
result of the bar examination accommodations process, there are 
multiple possible explanations. For example, state bars may be giving 
examinees insufficient accommodations, giving examinees the wrong 
accommodations for their disability, being inconsistent in their grant of 
accommodations, or wrongly refusing to give examinees with certain 
types of disabilities any accommodations. 
Similarly, if we assume the problem is with the way law schools 
grant accommodations, there are multiple explanations that could fit 
the data. Law schools may be providing students with accommodations 
beyond what is appropriate for their disability, giving accommodations 
to students who should not be receiving them, applying a different 
standard for granting accommodations (and for what accommodations 
to grant) than the bar examiners, and giving bar applicants bad advice 
about how to apply for accommodations.  
Furthermore, the results could be explained by accommodated 
students having lower credentials or law school GPAs than 
unaccommodated students. There could also be explanations associated 
with an examinee’s gender, race, or socioeconomic status.  
100 28 C.F.R. § 36.309(b)(1)(i) (2023); Dept. of Fair Emp. & Hous. v. L. Sch. Admission 
Council Inc., 896 F. Supp. 2d 849, 867 (N.D. Cal. 2012). 
2023] The Kids Are Definitely Not All Right: An Empirical Study  25 
Establishing a Statistically Significant Negative Relationship Between 
Receiving Accommodations in Law School and Passing the Bar Exam
In light of this uncertainty and the ADA’s mandate, it is incumbent 
upon the profession to identify precisely why this correlation between 
law school accommodations and first-time bar passage rates exists. 
To do so will require data at the level of individual student. And to 
gain that data, I will be seeking funding for a grant that would 
allow for a comprehensive, student-level, multidisciplinary study of 
accommodations in law school and the bar examination. Only with 
such a study will we truly know why accommodations in law school 
are negatively correlated with bar passage rates. 
26 OREGON LAW REVIEW [Vol. 102, 1