TaxProf Blog op-ed: Why We Still Support The ABA's Proposed 75% Bar Passage Requirement, by Craig M. Boise (Dean, Syracuse) & Andrew P. Morriss (Dean, Texas A&M):
Indiana Law Dean Austen Parrish recently responded to our TaxProf Blog response to his column on the ABA’s proposed 75% bar passage rule. While we don’t want to suggest deans spend their days writing op-eds, we do think a bit of further comment is merited.
First, we’re pleased to find some areas of agreement with Dean Parrish. We all agree — and we suspect virtually all legal educators agree — that, at a minimum, the ABA should be working to remove accreditation from law schools that are “predatory.” But shouldn’t our accreditor do more? The number of schools that are truly predatory is thankfully small, yet there are still a significant number of schools whose graduates consistently fail to pass the bar at a reasonable rate.
Second, we agree with Dean Parrish that the recent California bar results are troubling. As he suggests, it is implausible that the precipitous drop in UC-Hastings’ bar passage rate is due to anything the Hastings faculty did. After all, a number of schools in California had the same experience. And no one, including us, has suggested Hastings is “predatory.” But one anecdote about one administration of one bar exam by one state is not a reasonable basis on which a national accrediting agency should make policy. We trust that the ABA in its role as accreditor will be able to take into account anomalous results like the recent California numbers if it becomes necessary to do so.
Third, we also agree with Dean Parrish that the legal profession has much work to do to be as diverse and inclusive as it should be. There has been dismayingly little progress on this front for decades. Law schools that have achieved significant diversity in their student bodies, should be commended for working to address this issue. However, to enter the legal profession, a law graduate must pass a bar exam. If a law school cannot deliver reasonable bar passage rates it is not helping diversify the profession. Rather, it is saddling minority students with crippling student debt and providing them no means of servicing their student loans.
Despite our agreement on some key issues, there are other areas where we part company with Dean Parrish. He argues “the new proposed bar standard has too many potential negative collateral consequences on schools with strong academic programs.” We don’t think that’s true. A strong academic program ought to yield reasonable bar performance. When a school falls short, as schools do from time to time, it must take more effective steps to improve its graduates’ bar performance. Contrary to Dean Parrish’s assertion, that doesn’t mean “teaching more to the bar exam” or short-changing the needed skills and professional development programs many schools — including ours and his — are expanding. But it does mean owning the problem and finding a solution.
Another area of disagreement is in how we think about the role of the bar exam. Dean Parrish suggests there are two groups of states: the “protectionist” ones (presumably including California, although he doesn’t identify others) and those that “seek to ensure simply minimum lawyering competence.” We’re more hesitant than Dean Parrish is to attribute a protectionist motive to the California bar examiners. Indeed, California has long had a bar exam that tested more lawyering competence skills than most. Many states’ bar exams include only the multistate multiple choice questions and subject area essay questions. By contrast, California’s exam includes questions based on sets of documents and legal materials and is, according to the instructions for the July 2016 exam, “designed to evaluate your ability to handle a select number of legal authorities in the context of a factual problem involving a client.” That sounds like an effort to ensure “minimum lawyering competence” to us. And it’s hard to imagine a state less protectionist in letting people take the bar exam than California, where graduates from the state’s ABA-accredited, state-accredited, and unaccredited law schools are all eligible to sit for the exam. Whatever happened in California this past year, we are skeptical it can be dismissed as mere protectionism.
As we noted, state supreme courts have the right to control admission to the bars of their respective states. For the most part, this is done through bar examinations that screen prospective lawyers for some abilities related to the practice of law. These exams are admittedly imperfect and can certainly be improved. The ongoing debate over the growing acceptance of the Uniform Bar Examination (UBE) is helping clarify the importance of rigorous test development (a strength of the National Conference of Bar Examiners that produces the UBE) as well as local content (an historic strength of state bars). So, though we agree with Dean Parrish that bar exams need continuous improvement, we also must all work to get our students through the exams as they are now.
In short, we think it is reasonable for professional schools that hold out to their students the promise of a legal career to be held to a reasonable standard for graduating students who actually are capable of obtaining the license needed to have that career. That doesn’t detract from the need to teach law students legal doctrine and to “think like lawyers,” or to provide externships, clinics and other opportunities for experiential learning. But it does mean law schools bear a good deal of the responsibility for their graduates’ professional outcomes. We are confident that our colleagues in the legal academy can satisfy that responsibility without turning law schools into three-year bar prep courses.