The New Bar Exam Puts DEI Over Competence ‘NextGen’ seeks to ‘eliminate any aspects of our exams that could contribute to performance disparities’ by testing fewer areas of law and probing each subject less deeply. By Jay Mitchell
The bar exam is about to get a nationwide overhaul. The National Conference of Bar Examiners, or NCBE, which creates and administers the uniform bar exam, plans to roll out a revamped version of the bar exam, which it calls the “NextGen” exam, in 2026. After attending the NCBE’s annual meeting this month, I have serious concerns about how this test will affect law students, law schools and the legal profession.
The proposed NextGen exam will be shorter than the current two-day evaluation, test fewer areas of law, and probe each subject less deeply. Certain topics won’t be tested at all. The exam will also feature new client-interaction exercises, though it’s unclear what this feature will look like and how the NCBE will ensure it is graded objectively.
Some of these changes may prove salutary. Working with clients, for example, is an essential feature of any law practice. But the new exam also seems far less rigorous and could hamper the ability of states to determine who should be admitted to practice law. The results could be ruinous. States can’t maintain functional court systems unless clients and judges can trust the basic competency and integrity of attorneys admitted to the bar.
The proposed exam will also eliminate family law and trusts and estates as tested subjects. Tens of millions of Americans live in rural areas and small towns, where legal needs typically revolve around family law (marriage, divorce, custody and adoption) and probate matters (estate administration, guardianships and conservatorships). In many rural areas, residents’ access to justice depends on the ability of only a handful of practicing attorneys. These residents need to know that new lawyers have the foundational knowledge to serve their needs or at least the threshold understanding necessary to refer them elsewhere. If these areas of legal practice are eliminated from the exam, it will be difficult to replenish the requisite knowledge in our lawyer ranks.
But perhaps the biggest concern is the NCBE’s use of the NextGen exam to advance its “diversity, fairness and inclusion” agenda. Two of the organization’s stated aims are to “work toward greater equity” by “eliminat[ing] any aspects of our exams that could contribute to performance disparities” and to “promote greater diversity and inclusion in the legal profession.” The NCBE reinforces this message by touting its “organization-wide efforts to ensure that diversity, fairness, and inclusion pervade its test products and services.”
What does all this mean—and how does it have any relation to the law? Based on the diversity workshop at the NCBE conference, it means putting considerable emphasis on examinees’ race, sex, gender identity, nationality and other identity-based characteristics. The idea seems to be that any differences in group outcomes must be eliminated—even if the only way to achieve this goal is to water down the test. On top of all that, an American Civil Liberties Union representative provided conference attendees with a lecture on criminal-justice reform in which he argued that states should minimize or overlook would-be lawyers’ convictions for various criminal offenses in deciding whether to admit them to the bar.
None of this is encouraging. It shouldn’t matter who you are or where you come from—if you can demonstrate minimal competency on the bar exam and meet a state’s character-and-fitness requirements, you should be allowed to practice law. If you can’t, you shouldn’t be given a license to handle the legal affairs of others. The bar exam should test the law straight—without respect to ideology and on a race- and sex-blind basis.
If NextGen comes online as scheduled in 2026, students entering law school this fall will be the first crop of graduates to take the new exam. This means that, in short order, law schools would have to begin reconfiguring their curricula to focus on subjects tested by the new evaluation. Which is to say the NextGen exam is already here and will soon begin to eclipse the current test—perhaps well before states understand what is on the exam and whether it makes sense to adopt it. State courts and licensing authorities shouldn’t be pressured or hurried into making such an important decision.
It is imperative that the NCBE disclose as much detail as possible about the content, scope and scoring of NextGen before law students show up this fall for the next academic year. States, for their part, should push for the option to retain the current exam for at least the next five to 10 years until they can properly assess the effectiveness of the new exam. State courts and bar associations would also do well to insist that the NCBE commit in writing that the new exam will be ideologically neutral and blind to race and sex.
Meantime, a wider range of people—judges, lawyers, law-school deans, scholars, public-interest groups, businesspeople, law students and members of the public—should take a look at the exam and provide the NCBE and their state supreme courts with feedback on whether it should be adopted. The future of the legal profession hinges on that determination.
Justice Mitchell serves on the Alabama Supreme Court.
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