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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, July 5, 2013

Merritt: Bar Passage, Accreditation, and Diversity

Following up on my post, ABA Proposal to Tighten Bar Passage Requirement Alarms Law School Diversity Advocates:  Law School Cafe, Bar Passage and Accreditation, by Deborah Jones Merritt (Ohio State):

The Standards Review Committee of the ABA’s Section of Legal Education has been considering a change to the accreditation standard governing graduates’ success on the bar examination. The heart of the current standard requires schools to demonstrate that 75% of graduates who attempt the bar exam eventually pass that exam. New Standard 315 would require schools to show that 80% of their graduates (of those who take the bar) pass the exam by “the end of the second calendar year following their graduation.” I support the new standard, and I urge other academics to do the same. ...

Critics of the proposal rightly point out that a tougher standard may discourage schools from admitting minority students, who pass the bar at lower rates than white students. This is a serious concern: Our profession is still far too white. On the other hand, we won’t help diversity by setting minority students up to fail. Students who borrow heavily to attend law school, but then repeatedly fail the bar exam, suffer devastating financial and psychological blows.

How can we maintain access for minority students while protecting all students from schools with low bar-passage rates? I discuss three ideas below.

1.  The $30,000 Exception

When I first thought about this problem, I considered suggesting a “$30,000″ exception to proposed Standard 315. Under this exception, a school could exclude from the accreditation measure any student who failed the bar exam but paid less than $10,000 per year ($30,000 total) in law school tuition and fees. An exception like this would encourage schools to give real opportunities to minority students whose credentials suggest a risk of bar failure. Those opportunities would consist of a reasonably priced chance to attend law school, achieve success, and qualify for the bar. ...

2.  Adjust Bar Passing Scores

One of the shameful secrets of our profession is that we raised bar-exam passing scores during the last three decades, just as a significant number of minority students were graduating from law school. ... These increases mean that it’s harder to pass the bar exam today than it was ten, twenty, or thirty years ago. ... Why do today’s racially diverse applicants have to achieve higher scores than the largely white applicants of the 1970s? ... If we want to diversify the profession, we have to stop raising the bar as the applicant pool diversifies. ...

Let’s roll back passing scores to where they stood in the 1970s. Taking that step would diversify the profession by allowing today’s diverse graduates to qualify for practice on the same terms as their less-diverse elders. Preserving accreditation of schools that produce a significant percentage of bar failures, in contrast, will do little to promote diversity.

3.  Work Harder to Support Students’ Success

Teaching matters. During my time in legal education, I have seen professors improve skills and test scores among students who initially struggled with law school exams or bar preparation. These professors, notably, usually were not tenure-track faculty who taught Socratic classes or research seminars. More often, they were non-tenure-track instructors who were willing to break the law school box, to embrace teaching methods that work in other fields, to give their students more feedback, and to learn from their own mistakes. If one teaching method didn’t work, they would try another one. If we want to improve minority access to the legal profession, then more of us should be willing to commit time to innovative teaching. ...

Some faculty will object that we shouldn’t have to “teach to the bar exam,” that schools must focus on skills and knowledge that the bar doesn’t test. ... It is disingenuous for law schools to disdain rigorous bar preparation, because the bar exam’s very existence supports our tuition. ... Students pay more for a law school education than for graduate training in most other fields because they need our diploma to sit for the bar exam. As long as lawyers limit entry to the profession, and as long as law schools serve as the initial gatekeeper, we will be able to charge premium prices for our classes. How can we eschew bar preparation when the bar stimulates our enrollments and revenue?

If we want to diversify the legal profession, then we should commit to better teaching and more rigorous bar preparation. We shouldn’t simply give schools a pass if more than a fifth of their graduates repeatedly fail the bar. If the educational deficit is too great to overcome in three years, then we should devote our energy to good pipeline programs. ...Private law schools today charge an average of $120,000 for a JD. At those prices, schools should be able to assure that at least 80% of graduates who choose to take the bar exam will pass that exam within two calendar years. If schools can’t meet that standard, then they shouldn’t bear the mark of ABA accreditation.

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"Our profession is still far too white."

Holy cow! Diversity advocates can be pretty racist.
It's time for them to join our nation in ending all discrimination.

Fisher v. University of Texas at Austin

Posted by: Woody | Jul 5, 2013 2:42:10 PM

Racism, n: the act of pointing out that the status quo works overwhelmingly for the benefit of members of one race over the members of others, for reasons that have only a glancing relationship to personal merit.

Posted by: Morse Code for J | Jul 5, 2013 3:22:04 PM