TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Wednesday, October 19, 2016

HBCU Law Deans Oppose ABA's Proposed 75% Bar Passage Accreditation Requirement Due To Diversity Concerns

HBCUNational Law Journal op-ed:  HBCU Law Deans Say ABA Bar-Passage Rule Changes Will Hurt Profession's Diversity, by Dannye Holley (Former Dean, Texas Southern), Danielle Holley-Walker (Dean, Howard), John Pierre (Dean, Southern), Felecia Epps (Dean, Florida A&M), Phyliss Craig-Taylor (Dean, North Carolina Central) & James Douglass (Interim Dean, Texas Southern):

The proposed changes to the ABA's bar-passage standard, set to be decided this week, have been the subject of great debate. Some, like Daniel Rodriguez and Craig Boise, deans of Northwestern University Pritzker School of Law and Syracuse University College of Law, respectively, have written in support of the proposed changes to Standard 316. But these proposed changes come at a time when bar-passage rates in many states have been declining, and there are many unanswered questions about the impact of the adoption of the Uniform Bar Exam. Furthermore, at a time when the legal profession continues to struggle with a lack of racial and ethnic diversity, many of the schools that will be impacted by this change are schools who enroll large minority student populations. ...

Currently, all six HBCU law schools meet the current ABA bar standard, which is that 75 percent of a school's bar takers have to pass the bar within five years. But the entire profession should be deeply concerned at the potential adverse impact this standard change would have on law schools associated with HBCUs. ...

HBCU law schools have been responsible for a significant and disproportionate percent of the African-American and other new lawyers of color added to the profession annually. ... [A]ny proposal that might have an adverse impact on the mission of HBCU law schools in continuing their leadership role in diversifying the profession, should first conduct a detailed analysis of how such a new proposal will impact such institutions. The ABA put forth a study that they claim demonstrates that "almost all" bar outcomes will be determined in the two-year window proposed under the new standard. However, there has been no disparate-impact study conducted by the ABA to assess how the proposed standard will impact law schools with large percentages of minority law students. No new standard should be considered without making this assessment. ...

[W]e are disappointed that the ABA, without conducting a disparate-impact study, appears to be moving forward with a change to the bar-passage standard that may have an adverse impact on our law schools. Being found to be out of compliance with this new ABA accreditation standard would have seriously negative impacts on our law schools. It would make it difficult for us to recruit students, faculty and the donors that are needed to sustain our academic program —programs that help to promote diversity in the profession and access to justice for underserved communities.

We hope that the ABA will not adopt a bar-passage standard that we know is likely to detrimentally impact diversity.

Legal Education | Permalink


Instead of complaining about requirements that will protect minority students from crippling debts, adopt better teaching techniques and devote more resources to teaching. North Texas is the perfect example of a school that is trying to do this. While they are admitting minorities with low indicators, they have devoted themselves to making these students educated so they can be effective lawyers and pass the bar. Same thing with FIU. FIU had the highest bar passage rate for first-timers this July in Florida because they adopted new teaching approaches based on proven learning research.

Law schools are not going to create greater diversity in the legal profession just by admitting minority students. Law schools must educate those minority students effectively. There is no other way to create diversity in the legal profession.

Posted by: Scott Fruehwald | Oct 19, 2016 1:53:10 PM

I am curious as to why these schools feel they can't improve in preparing their students to pass at the required rates? No discussion of why the schools are apparently doomed to fail to meet the standard going forward? They could really promote diversity in the profession by preparing a larger percentage of their students from diverse backgrounds to actually pass the bar at higher rates, so that they can actually join the profession.

The fact that they seem to just assume and accept failure is unfortunate, and seems like an insult to their future students, as if there is no hope that they can excel in large numbers, because they are minorities...

Posted by: Anon | Oct 19, 2016 2:06:01 PM

I provided the Council with an analysis of the National Council of Bar Examiners' bar persistence studies that demonstrated that they are methodologically unsound, statistically erroneous and biased in the sample chosen to study. First, those studies did not study bar taking persistence, but rather MBE taking persistence. Some states accept MBE scores for up to 5 years, and therefore there is not a correspondence between MBE test taking and bar examination persistence. My analysis demonstrated that the NCBE studies of CA test takers was more than 12% inaccurate. Second, the study only analyzed bar test taking persistence in a group of states with a mean of low MBE cut scores and mean of high bar passage rates. These studies provide no evidence of the impact of the proposed 75% in 2 year bar passage standard in states, like CA, that have extremely high MBE cut scores and traditionally very low bar passage rates. However, I provided the Council with an empirical study of CA bar test taker persistence written by a nationally recognized psychometrician that demonstrates that in CA minority persistence and bar passage rates increase by more than 20% if the longitudinal window is longer than 2 years. In addition, testimony at the Council's hearing on the proposed changes to Standard 316 indicated that many minority law students cannot afford to take the bar exam on successive administrations and that they may not be able to take the exam more than 2 times in the 2-year proposed ABA window. The net result is that in states like CA with high MBE cut scores and low bar passage rates many minority students will not pass the bar in the 2 year window thus providing an incentive for CA law schools to lower the number of minorities admitted in order to assure they will meet the new 75% in 2 year standard.

Posted by: William Wesely Patton | Oct 19, 2016 2:24:01 PM

There is a serious mathematical problem with the ABA’s 75% proposal.

Bar results are normally distributed – that is, we can predict in advance how they will cluster around the mean. In a state in which only one school provides the bulk of bar-takers, the bulk of that normal distribution will be reflected in that school’s bar passage rate. Assuming that the state bar passage mean is reasonably high, the school will always meet the ABA’s requirement, regardless of the quality of the education it provides.

In a state with multiple law schools, however, the normal distribution of bar results will instead be distributed unevenly across those schools. Some schools’ results will incorporate the lower end of that normal distribution. If there are enough schools in the state and students are sorted by bar-taker aptitude across those schools, the bottom schools will always fail the ABA’s requirement, again regardless of the quality of the education it provides.

Note that the difference between the two results – always meeting and always failing – is not because students are being admitted who shouldn’t be. If, in the state with multiple law schools, all such schools were to merge into one single mega-school, without any change in admissions policies or educational quality, that mega-school would absorb the bulk of the normal distribution in bar passage and would always meet the ABA’s requirement.

What this means is that the ABA’s proposal should chiefly impact lower-ranked schools in large states – not because the quality of the educations they provide or because they are admitting students who should not be lawyers, but because of the mathematics of normal distributions. To the extent those lower-ranked schools disproportionately service students from underserved communities, the ABA’s proposal will disproportionately impact diversity in the legal profession. And again, this is not because schools are admitting students who shouldn’t be admitted. It follows from the failure of the ABA to take the mathematics of normal distributions into account in structuring its proposed standard.

Posted by: Theodore Seto | Oct 20, 2016 12:39:38 AM

Because we definitely need more Affirmative Action lawyers

Posted by: bandit | Oct 20, 2016 5:05:24 AM