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

Monday, December 19, 2016

Boise & Morriss:  The Shameful Truth Is That Many Law Schools Have Admitted Students With Low LSAT Scores To Prop Up Tuition Revenue And Now Seek To Avoid Accountability For The Ensuing Poor Bar Passage Results

BMTaxProf Blog op-ed:  Preparing Graduates to Pass the Bar Exam Should Be a Central Obligation of All ABA-Accredited Law Schools, by Craig M. Boise (Dean, Syracuse) & Andrew P. Morriss (Dean, Texas A&M):

We write in response to Indiana University law dean Austen Parrish's recent op-ed in the Indiana Lawyer criticizing the new, higher bar passage standard approved last month by the ABA's Council on Legal Education and Admission to the Bar. See Indiana Dean: The ABA’s Troubling Focus on The Bar Exam, TaxProf Blog (Nov. 17, 2016).

Dean Parrish opposes the higher bar passage standard principally because he believes that the bar exams administered by virtually every state are not good measures of competence to practice law, and law schools therefore should not be held accountable for their students' performance on them. Unfortunately, Dean Parrish's conclusion does not follow from his premise and this mistake taints his analysis. No matter whether bar exams test practice skills or not, passing the bar exam is a hurdle that law graduates must clear to practice law. Preparing graduates to pass the bar exam has thus long been a centerpiece of legal education and represents a focus that is neither "emerging" nor "troubling." It is, in fact, a central obligation of all ABA-accredited law schools.

Standard 301 of the ABA Standards, titled "Objectives of Program of Legal Education" requires that a law school "maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession." Bar passage and membership in the legal profession are at the heart of the mission of legal education, and it is the responsibility of the ABA to ensure that mission is fulfilled. The ABA would be failing miserably in its duty as the accreditor of the nation's law schools if it adapted its standards to ensure their survival rather than the success of law students.

Dean Parrish is also incorrect when he claims that by focusing on bar passage the ABA "directs power from a national level to a local one." The power in admission to the practice of law has long been vested in state bars and is, by definition, local. By requiring graduation from an ABA-accredited law school most states acknowledge the ABA's role as accreditor of the nation's law schools, but they need not impose such a restriction. California, notably, has not, permitting graduates of law schools not accredited by the ABA to take its bar exam. Indeed, it is each state's prerogative to craft a bar exam that tests the knowledge or skills it believes are necessary to successfully practice law within it’s jurisdiction.

In an odd departure from the prevailing view, Dean Parrish also argues that the bar exam is too esoteric and insufficiently practical. This would come as a surprise to the majority of law school faculty, who often resist "teaching to the exam" because they see it as overly oriented toward practice and not sufficiently focused on legal theory. The bar exam does test much practical, black-letter law, and with the addition of the Multistate Performance Test also evaluates a graduate's ability "to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish."

Dean Parrish also claims that bar exams are merely devices to limit entry into the profession. Bar exams have many flaws, but to assert that they merely are intended to protect established lawyers from competition requires much more evidence than Dean Parrish has provided. Here again, however, the purpose of the bar exam is immaterial. What matters is that passing it is necessary to practice law and law schools are obligated to ensure their students are prepared for the exam.

Dean Parrish is also inconsistent in assessing the nature of the bar exam. On the one hand, he criticizes it as just another standardized test that "simply tests the ability to take tests." If this were true, one would expect that graduates of elite schools who typically have higher LSAT scores would have little difficulty with the bar exam. As Dean Parrish observes, this is not always the case—particularly in California. This suggests that perhaps the bar exam is, in fact, about more than the ability to excel on standardized tests.

Dean Parrish concludes with two assertions. First, he claims the new bar passage standard is not really about ensuring legal competency but about affecting law schools' admissions criteria. If the ABA wanted to change admissions criteria, however, it could do so directly and much more effectively by simply requiring a minimum LSAT score for all matriculants. Instead, it has left that decision to law schools, stipulating in Standard 501 only that a school may not admit students who do not appear capable of satisfactorily completing its program of legal education and being admitted to the bar. Having been given the latitude to determine the credentials of the students they admit, law schools bear the responsibility of seeing that those students can pass the bar.

Dean Parrish also asserts that if law schools are held to a higher bar passage standard, they will admit fewer students of color with lower LSAT scores. There are two problems with this argument. First, such a response is at odds with Standard 206, which requires law schools to demonstrate by concrete action a commitment to having a student body that is diverse with respect to gender, race, and ethnicity. Worse, the argument suggests that the only students admitted with lower LSAT scores are students of color. The shameful truth is that in the face of a nationwide applications slump, many law schools have admitted students with ever-lower LSAT scores—of all races and ethnicities—to prop up tuition revenue. They now seek to avoid accountability for the resulting poor bar passage results.

The ABA is correct in expecting law schools to do right by the students they admit and adequately prepare them to pass the bar exam and engage in the profession for which they are pursuing a legal education.

http://taxprof.typepad.com/taxprof_blog/2016/12/boise-morrissthe-shameful-truth-is-that-many-law-schools-have-admitted-students-with-low-lsat-scores.html

Legal Education | Permalink

Comments

Clear, honest thinking. Would that this op-ed be widely disseminated!

Posted by: Old Ruster from JD Junkyard | Dec 19, 2016 4:48:11 AM

As a law prof. who has researched and written on these issues, I can tell you that Boise & Morriss are right on the money. It's refreshing to see administrators accept the data even though they are contrary to the short-term financial interests of law schools. We need to see more of this courageous truthfulness.

Posted by: Robert Steinbuch | Dec 19, 2016 4:56:45 AM

"No matter whether bar exams test practice skills or not"

Posted by: Andre L Smith | Dec 19, 2016 6:26:30 AM

Make the legal profession great again, and make legal education great again!

Posted by: Jojo | Dec 19, 2016 7:13:45 AM

I eagerly await profs. Diamond's and Simkovic's retort to these two scamblogger deans.

Posted by: Anon | Dec 19, 2016 9:25:16 AM

Before we start handing out the Profiles in Courage awards:

Has anyone stopped to examine the role of universities in these decisions? Some universities, presumably including the authors', have allowed their law schools to cut back on enrollments; others have not. It's not like the authors have some magical power of integrity that allows them to make principled enrollment decisions unilaterally, without regard to whether their universities are willing to bear the costs of them doing so.

(This assumes that the authors' schools have held the line on admissions standards and have the same or higher student entering credentials now as pre-applicant crash: I do not know whether that's true, but it would be easy to find out.)

Posted by: Anon | Dec 19, 2016 3:27:29 PM

Anon's point about the role of the central university is a fair one where applicable (a very large portion of the worst-offending law schools are not tied to a central university, particularly the for-profits). But I tend to think that it doesn't matter ultimately.

Whether a law school is violating ABA standards (and basic decency) of its own volition, or because the Central U. refuses to artificially prop them up and throw more good money after bad, is moot at this point. Shut. Them. Down.

The courage award is warranted because these two deans dare to speak an uncomfortable truth in a forum where the nastiest of the nasty of peers lurk.

Posted by: Anon | Dec 19, 2016 4:34:41 PM

Why does everyone assume that the LSAT is a scientifically valid predictor of a prospective students ability to study and learn law, pass the bar. or practice law. No appropriate studies have ever shown it to be so.

Posted by: Mickey Robins | Dec 20, 2016 1:12:27 PM

Agreed. This is indeed, a bold move by our colleagues and inconvenient truth to reveal, that needs to be spoken and discussed openly. It is a good start; no doubt. However, it may not go far enough in outlining the other material problem lurking in the shadows of modern reality and pragmatism, and as well as the link between the unspoken and shared failure and malfunction of both the American legal profession and American legal education. These two inter- connected parts, continue to throw and pass the fault and blame to each other, when in reality it is one and the same. The legal education system and the legal profession in America are both antiquated, impractical, and unrealistic, with shared over- reliance and obsession over examinations to both enter the profession, and legal education exit into practise. As a lawyer trained and qualified in Europe and in the US, it is conceivable to me personally, that another up- coming crisis is at hand in the US legal profession. As another colleague already observed: “Why does everyone assume that the LSAT is a scientifically valid predictor of a prospective student’s ability to study and learn law, pass the bar, or practice law?” This is an excellent fair question. The same question applies to unreasonable Bar examinations that appear to be intendedly designed and unreasonably lengthier and more strenuous each year. Some bar exams are even incomprehensible. The Bar exam qualification inconsistency between states is remarkable and outrageous and perhaps- ludicrous. For example, Wisconsin does not even require a bar exam due to is on-going diploma privilege. The (illogical) conclusion that can be drawn from this is outcome, is that either Wisconsin lawyers with diploma privilege are not good lawyers, or that the best law schools are not the Ivies or top 20, but rather the University of Wisconsin, or Marquette, etc, and hence these law graduates do not need an exam or other vocational training. Obviously, this is a false conclusion. This is reminiscent of Woody Allen’s depiction of the Aristotelian logical syllogism in the 1975 film “Love & Death” where he explains it that: 1) All men are mortals, 2) Socrates is a man, 3) therefore, ALL men are Socrates… Fine reasoning!
This also would signify that lawyers like myself, who entered the legal profession not through a single- exam scheme such as a US Bar exam, and instead attended a Legal Practise Course, and then a pupillage period of instruction under qualified lawyers; may not be optimal professional lawyers either. This of course, is non-sense! This type of post educational professional training is the norm in many countries, including the UK, and Canada, Australia, etc., jointly with professional or Bar exams. Even in Germany, where the first and second Bar Exams qualifications (Juristische Staatsexamen) are known to be awfully demanding; they are at least reasonable and predictably manageable. Please note that the US is one of only a few countries facing this dilemma. One thing is a reasonable exam, that is inclusive or enabling and designed with due rigour and with selective professional standards, and it is quite another to be exclusionary and autocratic, that may also deny others the opportunity pursue their chosen vocation or profession within a rational and neutral qualification channel.
The Bar Exams in the US are purportedly exclusionary and provide barriers and obstacles to the entry to law practise, and some have argued that the several state bars have become little more than monopolistic, autocratic guilds, whereby a handful of gate- keeper examiners, now determine and control who is “qualified” to be a lawyer, and who is not, ab initio, on the basis of a single exam. Fast (native language) readers have the advantage and other who may be different; do not. All this while bearing in mind, that some of those very examiners, either sat for much easier exams in more tranquil times, and even some still; never sat for a Bar exam at all, as many states like Wisconsin, Mississippi, etc, also contained the so- call “diploma privilege” rules. This includes many sitting judges or magistrates. We all know that that there are always exceptions, of course. Please, let us not even discuss many great lawyers like your own Mr. Darrow, or Roscoe Pound, (neither graduated from law school) and the “Founding Fathers” which actually, proved to be a very good lot.
You already have one crisis at hand, created by the ABA accrediting too many deficient law schools, and the subsequent admissions disaster. The next one will be the foreseeable economic- related crisis the all the legion of law graduates that could not pass a Bar Exam, for some reason or another, now defaulting on their students loans in volume. Multiply this number over the next decade or two and you have the making of a predictable upheaval and catastrophe. So much for equal opportunity and equal justice under the law. Your inconsistent, conflicting and capricious legal education system and professional entry scheme is not sustainable and it will be costly, and detrimental to the legal profession as whole. Please do keep in mind that while this disastrous structure continues; other continue to invest, pay and agonise.

Posted by: Publius Valerius | Dec 21, 2016 2:09:50 PM

Agreed. This is indeed, a bold move by our colleagues and inconvenient truth to reveal, that needs to be spoken and discussed openly. It is a good start; no doubt. However, it may not go far enough in outlining the other material problem lurking in the shadows of modern reality and pragmatism, and as well as the link between the unspoken and shared failure and malfunction of both the American legal profession and American legal education. These two inter- connected parts, continue to throw and pass the fault and blame to each other, when in reality it is one and the same. The legal education system and the legal profession in America are both antiquated, impractical, and unrealistic, with shared over- reliance and obsession over examinations to both enter the profession, and legal education exit into practise. As a lawyer trained and qualified in Europe and in the US, it is conceivable to me personally, that another up- coming crisis is at hand in the US legal profession. As another colleague already observed: “Why does everyone assume that the LSAT is a scientifically valid predictor of a prospective student’s ability to study and learn law, pass the bar, or practice law?” This is an excellent fair question. The same question applies to unreasonable Bar examinations that appear to be intendedly designed and unreasonably lengthier and more strenuous each year. Some bar exams are even incomprehensible. The Bar exam qualification inconsistency between states is remarkable and outrageous and perhaps- ludicrous. For example, Wisconsin does not even require a bar exam due to is on-going diploma privilege. The (illogical) conclusion that can be drawn from this is outcome, is that either Wisconsin lawyers with diploma privilege are not good lawyers, or that the best law schools are not the Ivies or top 20, but rather the University of Wisconsin, or Marquette, etc, and hence these law graduates do not need an exam or other vocational training. Obviously, this is a false conclusion. This is reminiscent of Woody Allen’s depiction of the Aristotelian logical syllogism in the 1975 film “Love & Death” where he explains it that: 1) All men are mortals, 2) Socrates is a man, 3) therefore, ALL men are Socrates… Fine reasoning!
This also would signify that lawyers like myself, who entered the legal profession not through a single- exam scheme such as a US Bar exam, and instead attended a Legal Practise Course, and then a pupillage period of instruction under qualified lawyers; may not be optimal professional lawyers either. This of course, is non-sense! This type of post educational professional training is the norm in many countries, including the UK, and Canada, Australia, etc., jointly with professional or Bar exams. Even in Germany, where the first and second Bar Exams qualifications (Juristische Staatsexamen) are known to be awfully demanding; they are at least reasonable and predictably manageable. Please note that the US is one of only a few countries facing this dilemma. One thing is a reasonable exam, that is inclusive or enabling and designed with due rigour and with selective professional standards, and it is quite another to be exclusionary and autocratic, that may also deny others the opportunity pursue their chosen vocation or profession within a rational and neutral qualification channel.
The Bar Exams in the US are purportedly exclusionary and provide barriers and obstacles to the entry to law practise, and some have argued that the several state bars have become little more than monopolistic, autocratic guilds, whereby a handful of gate- keeper examiners, now determine and control who is “qualified” to be a lawyer, and who is not, ab initio, on the basis of a single exam. Fast (native language) readers have the advantage and other who may be different; do not. All this while bearing in mind, that some of those very examiners, either sat for much easier exams in more tranquil times, and even some still; never sat for a Bar exam at all, as many states like Wisconsin, Mississippi, etc, also contained the so- call “diploma privilege” rules. This includes many sitting judges or magistrates. We all know that that there are always exceptions, of course. Please, let us not even discuss many great lawyers like your own Mr. Darrow, or Roscoe Pound, (neither graduated from law school) and the “Founding Fathers” which actually, proved to be a very good lot.
You already have one crisis at hand, created by the ABA accrediting too many deficient law schools, and the subsequent admissions disaster. The next one will be the foreseeable economic- related crisis the all the legion of law graduates that could not pass a Bar Exam, for some reason or another, now defaulting on their students loans in volume. Multiply this number over the next decade or two and you have the making of a predictable upheaval and catastrophe. So much for equal opportunity and equal justice under the law. Your inconsistent, conflicting and capricious legal education system and professional entry scheme is not sustainable and it will be costly, and detrimental to the legal profession as whole. Please do keep in mind that while this disastrous structure continues; other continue to invest, pay and agonise.

Posted by: Publius Valerius | Dec 21, 2016 2:29:34 PM