TaxProf Blog op-ed: The California Supreme Court Should Lower The Bar Exam Cut Score, by Mitch Winick (President & Dean, Monterey College of Law):
The California Accredited Law Schools filed the attached letter brief with the California Supreme Court in support of an adjustment of the minimum passing score on the California Bar Exam from 1440 to 1390.
The CALS joined with the following sources and resources that now identify or support 1390 as a valid interim or final cut score: the State Bar Standard Setting Study, the State Bar Board of Trustees, the State Bar Office of Research & Institutional Accountability, the Assembly Judiciary Committee staff and Committee Chair Mark Stone, the Law School Council, and 56 California law school deans (19 ABA, 13 CALS, and 14 Registered). Further, it is also important to note at the outset that a score of 1390 falls within the national norm (1330 to 1390) of the largest ten jurisdictions (other than California).
These findings support the CALS position that adjusting the cut score to 1390 can significantly moderate the disparate impact of the current disproportionately high minimum passing score of 1440.
California law schools, both ABA and CALS, have made significant efforts to reflect the changing demographics of California. California ABA law schools minority (reported non-white) enrollment in 2016 was 44%. The CALS minority enrollment in 2016 was over 47%. Both of these reflect a significantly higher minority enrollment than the ABA law school national average of 32%.
Unfortunately, State Bar demographics do not reflect a similar success in minority engagement. The total 2017 State Bar minority membership (reported non-white) is approximately 16%. This reflects very little change over the past 15 years from the 14% of minority membership reported in 2001. Over that same period, Asian membership in the Bar remained unchanged, African American membership dropped from 2.4% to 1.9%, and Hispanic membership increased marginally from 3.7% to 4.6%.
One reasonable question for the Court to consider when comparing the number of minority students who are graduating from law school to the number of minority attorneys passing the bar exam is whether the existing cut score is having a diverse impact on minority examinees.
The CALS support of an adjusted cut score of 1390 takes particular notice of the data from the State Bar that indicates that at 1390 vs. 1440, Hispanic examinees would have experienced a 26.1% increase and African American examinees would have experienced an increase of 40.4% on the July 2016 Bar exam.
In addition, the State Bar has reported that there appears to be no empirical data that supports the argument that higher bar pass scores have any relationship to increased public protection.
“To the extent that higher cut scores reduce the number of licensed attorneys in a given jurisdiction, a high cut score may, in fact, undermine access to legal services – an important form of public protection” . . . statement from the State Bar Staff Report on Pass Line Options, September 5, 2017. When considering the adjustment of the California cut score to 1390, from the standpoint of public protection and job performance, it is important to note that the State Bar’s Standard Setting Survey found that "there is no empirical evidence that would support a statement that as a result of its high pass line  California lawyers are more competent than those in other states.”
The attached brief goes into details and provides the specific data charts for these and other critical findings. We remain optimistic that the California Supreme Court will be persuaded by the information that we have presented and will make an adjustment to the bar exam scoring.
This decision would serve the interests of the citizens of California and Monterey County by ensuring a high standard of public protection while providing fair access to licensing for a competent and diverse legal profession.