Discrimination Law, Legal Education

Discrimination Against Women and Minorities in German Bar Exams?

Forgive the sparse posting; I’ve been a bit busy lately. But I finally got a chance to look at what is probably the most ambitious study of discrimination in German legal education ever conducted. I’ll lay out the findings, then add a few comments from my own perspective.

The study was carried out

by Andreas Glöckner (FernUniversität Hagen), Emanuel Towfigh (EBS Universität Law School), and Christian Traxler (Hertie School of Governance) on behalf of the Ministry of Justice of the State of North Rhine-Westphalia (NRW). It is based on a comprehensive data set that includes the exam results of around 20,000 candidates who passed their first and second state exams in NRW between 2006 and 2016. The Ministry of Justice commissioned the study after the authors discovered gender and family background effects in the grading of state law exams in a first study in 2014. The follow-up study underpins and differentiates the results based on a broad set of data.

This study concentrated on the second state exam. For those unfamiliar, a quick overview of German legal education. Students enter law school as undergraduates, aged about 19. After about 5 years of academic study, they take the first state exam. The ‘state exams’ are administered by the German state in which the student lives. The graders are university professors, judges, and experienced lawyers. If they pass the first state exam, the student is a Diplom-Jurist, which means they have successfully studied law in theory, but are not yet licensed to practice. The grading scale (g) for law exams is 0 to 18. Passing grades begin at 4, “excellent” grades begin at 9. Only about 5 percent (g) of students score 13 or more.

After the first state exam comes a two-year apprenticeship period in which students work for 6 months in various settings: prosecutor’s office, a private lawyer, a government agency, and/or a judge’s chambers. After this 2-year apprenticeship program, students must pass the second state exam. This exam is a challenging series of written and oral tests requiring intense preparation. If the student passes the second state exam, they are a Volljurist, or “full lawyer”, and are finally entitled to practice law.

The grade on this second state exam is all-important for your legal career. The most prestigious jobs at law firms and in the state bureaucracy and bench are available only to the 20-30% of students who score 9 points or higher. The study found that:

Women score just under 2 percent lower than men in the second state law exam in Germany’s largest state. Among top scores, the gender effect to the detriment of women is particularly pronounced: 12 percent fewer women surpass the key career-relevant hurdle of 9 points. Only those with a score of 9 points or better – a so-called Prädikatsnote, or a score ‘with distinction’ – are admitted to government service, for example. When other factors such as A-level grades, age and examination dates are included in the statistical comparison, the differences are even more pronounced.

The disparities among migrants were even more pronounced:

Having a migrant background also leads to worse scores. For example, legal trainees who are born abroad and do not have German citizenship score 17 percent lower in the second state exam than German candidates. The probability of achieving a score ‘with distinction’ is as much as 70 percent lower for this group. German-born candidates with a German passport but a “non-German” name are also awarded lower scores on average. The differences also persist when previous grades are taken into consideration in the analysis.

The study found that when at least one of the three assessment panel members was female, the disparity between male and female evaluations largely disappeared. However, “52 percent of exam candidates are women, but 65 percent of examination panels were purely male during the period under review”. There was no way to assess the effect of examiners with migrant backgrounds, since “[t]he number of examiners with a migrant background has so far been so low that statistical statements are not possible.”

This study isn’t surprising, but does raise interesting questions and cross-cultural issues. A few observations.

1. Non-anonymous exams. German law state exams almost always involve oral exams, in which candidates prepare and deliver speeches on legal topics and answer questions about them. The written portions of exams are largely anonymized (except for handwriting, which can be a giveaway), but oral exams obviously cannot be. Students are partially graded on their speaking style and presentation, which allows many subjective elements to enter the grade.

2. Unconscious bias. Are the professors, judges, and lawyers who grade German law exams biased? I know many German law professors, and most are fair-minded people who would get up on their hind legs if you accused them of intentional ethnic or gender discrimination. They considered themselves fair-minded and judicious professionals who evaluate students strictly on the basis of performance, right down the middle, holding the balance nice and true. And most of them strive to do just that.

But overt preferences are often misleading. Social desirability bias leads people to adjust their answers to loaded questions to fit in with what they know to be mainstream mores. Biases and expectations can operate at less-conscious level. The implicit association test is probably the wrong tool to measure them, but unconscious biases do exist, and there’s no reason to suspect law professors and lawyers any less subject to them than other people.

Yet German law professors tend to be a conservative bunch (see below), and are noticeably unenthusiastic about what they consider to be innovative or controversial psychological theories. If questioned on whether unconscious motivations might explain the difference in test scores, most will respond: “No, that’s just how the cards fell.”

3. Conservativism. German law professors and lawyers tend to be conservative in all senses of the word. This is true of lawyers in general everywhere: studying the rules which govern your country’s social life leaves you with a respect for those rules, or at least for the idea of rules in general. Some lawyers go on to become radicals, but there are so few of those that they’re the proverbial exception which proves the rule. Virtually all German law professors are civil servants, which means they are required to express “moderate” political opinions (g) and to endorse the existing constitutional order.

Whatever their political orientation, German law professors are almost uniformly conservative in dress, appearance, demeanor, self-image, background, behavior, and expectations. They view themselves as the conservators of an august tradition of legal thought stretching back to Roman times. They point to the many of German poets, writers, philosophers, critics, churchmen, statesmen and members of the nobility who received legal training and often even practiced as lawyers. The law is seen as a constitutive element in the maintenance of the state and of order in general. Study of the law is called legal science — Rechtswissenschaft — in German, and German professors and legal scholars consider it the equal of any of the more other scientific discipline such as physics or history.

Thus, many German law professors and senior lawyers — the kind of people who are invited to judge student performance on the all-important second state exam — are conservative in general. Which means that if certain groups aren’t performing well under the system these professors created and work within, those professors and judges are going to be reluctant to blame the system. This doesn’t mean they can’t be convinced to support reforms, just that they will start from the assumption that the system is working as it should, and that the individuals who aren’t thriving under it need to simply work harder to adapt.

4. Opposition to Affirmative Action / Positive Discrimination. In the English-speaking world, the answer to differences in performance between minority and majority populations is pragmatic and direct: give minorities a boost. This is justified on a number of grounds: first, these groups have faced historic discrimination, and are entitled to extra assistance to make up for opportunities denied in the past. Second, having more females and minority-group members in universities and workplaces is considered good in and of itself.

In the United States, strict racial quotas are unconstitutional under the 14th Amendment to the constitution, which requires government to provide “equal protection” to all persons. However, the U.S. Supreme Court has held that policies which use race as one factor among others in deciding who gets admitted to university is are constitutional:

As this Court’s cases have made clear, however, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.” … As this Court has said, enrolling a diverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” . Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”

This thinking is still alien to mainstream German legal thought. There are lawyers and law professors who endorse affirmative action (in American parlance) or positive discrimination (in UK parlance) policies, but this view is considered well left of the mainstream. When Germany was called on to enact legislation to comply with the EU’s anti-discrimination guidelines, the legislature dithered for years. When it finally passed a law, in 2006, the Bundestag refused to use the word “discrimination” in the title, instead passing a law called “General Act on Equal Treatment“. During the deliberations on the law, some lawmakers endorsed the right of private property owners to discriminate on the basis of race or religion.

The average German law professor, if asked about the lack of diversity, would respond: “I have no problem with diversity. I have hired plenty of female and minority candidates, when they were good. But I would never bend rules or dilute qualifications to help someone merely because they are a minority. In the end, sending poorly-qualified lawyers out into society helps nobody, and will only reduce respect for the legal profession. Equality cannot be jump-started by quotas or other artificial means, it has to happen naturally.” I have heard versions of this speech from many German law professors, and by no means were all of them politically conservative. Affirmative action is seen — even by many left-of-center Germans — as a desperate last-ditch policy which only treats the symptom, not the underlying disease. The answer is for foreign students to be given better pre-university education, and for them to work harder at adapting to German society.

5. German law is very hard, and very German. German law, as I noted above, is deeply rooted in the country’s history and consciousness. There’s very little accessible material about it in other languages. German lawyers and judges are no better prose stylists than their colleagues elsewhere. Further, there is a special category of “lawyer’s German” which actually follows different grammatical rules from ordinary spoken or written German. Judges and professors often excrete twisting, meandering, abstraction-laden “worm-sentences” which make Hegel look as easy to read as a supermarket tabloid. Even among Germans, the German legal system has a recondite and forbidding reputation (although Germans are proud of their legal tradition and post-war constitution).

Thus, if you grew up in a household where German wasn’t spoken — or wasn’t spoken at a high level — and you have only a basic familiarity with German history, you’ll be at an inherent disadvantage in a German law school. You won’t be used to decoding any 85-word sentences, much less ones bristling with abstract legal jargon. Nor will you be familiar with abstract deductive systems of thought.

You’re also going to be less clubbable: You won’t have the implicit, unspoken social capital required to make a positive impression on conservative law professors, lawyers, and judges: How wide should your tie be (or how short can your skirt be), what do you use that odd short knife for, what is a ‘lieblich’ wine, what’s a ‘Gretchen question‘ (g), etc. There’s even a German nonprofit, Arbeiterkind (g) (‘Worker’s Child’) to help students from lower classes get along in German universities.

Put simply, German law professors are going to assume students arrive at university with the social, cultural, and intellectual equipment needed to understand the law. If it turns out they don’t, then the students will drop out and seek their fortune elsewhere. American universities spend millions on “retention” programs to help minority students improve their performance. German universities, and especially law faculties, simply view people dropping out, or getting poor grades, as a natural phenomenon. The poor will always be with you.

To sum up: In ethnically diverse societies, some minorities will perform worse on social indicators than the majority population. The question then becomes why: Is it (1) because the minority group simply lacks the relevant skills and abilities? Or (2) because the majority has adopted discriminatory rules and policies which artificially suppress the performance of minorities? Or (3) some combination of the two? In the United States, the opinion of educated elites, including lawyers, has always favored explanation #2, and the tendency to view poor performance by minorities as exclusively caused by discrimination has become even more powerful since the “Great Awokening” — a dramatic shift to the left on questions of race and discrimination, which started in about 2010:

As white liberals have come to place far greater emphasis on racial injustice, they have also endorsed reparative race-related social policies in greater numbers. This is evident across a range of issues: the rapid growth in white liberals who favor affirmative action for blacks in the labor force; in the increase in white liberals who feel that we spend too little on helping blacks, and that the government should afford them special treatment; in the increase in white Democrats who think it’s the government’s job to ensure “equal income across all races”; and in the increase in white liberals and Democrats who think that white people have ‘too much’ political influence.

Thus, in the United States, even suggesting that the cultural norms or behavior patterns of ethnic minorities may play some role in their poor performance in certain areas of life will immediately trigger critiques of racism and ‘victim-blaming’ from left-of-center Americans. Their assumption is that all races and genders have an inherently equal chance of excelling in all areas of life, and that any disparity in actual performance can thus only be the consequence of discrimination.

In Germany, similar disparities exist, but the explanation tends to differ. Ethnic minorities perform more poorly in many areas of German life — for instance, only 8% of students of Turkish extraction get university degrees, as opposed to 24% of ethnic German students. However, when Germans ask themselves why this is, the mainstream view combines potential discrimination with other explanations which are more “endogenous” — which have to do with the culture and choices (g) of some minority groups.

So, how will the the administrators of the German legal system respond to these findings? I predict they’ll do nothing. Did I mention that German professors, judges, and senior lawyers are conservative? They will admit a problem exists, but they will say it’s (1) relatively minor; (2) isn’t a product of inherent problems in the system itself; and (3) will gradually disappear over time. They’ll point to the fact that even with its inevitable failings, the modern German legal system remains one of the most efficient and fair legal systems ever created (which is, by the way, true). If it ain’t broke, they’ll say, don’t fix it. Of course, minority students and lawyers may have a different view, but there are still very few of them, and they’re generally not very politicized. They don’t storm into university presidents’ offices to demand change. At least not yet.

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