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

Monday, October 9, 2017

L.A. Times Editorial: Lower The Cut Score To Increase Diversity Of The Bar

California Bar ExamLos Angeles Times editorial:  Ease Up on California's Bar Exam to Achieve More Diversity Among Lawyers:

California’s bar exam is notoriously difficult. Or, more to the point, it’s notoriously difficult to pass, which is not quite the same thing. The questions that prospective lawyers must answer aren’t necessarily harder here than those on other states’ exams, but the grading is tougher. It’s as if you only have to get a C+ to be an attorney in Illinois, but you need an A- in California. Fewer than half the would-be lawyers who took the test here in the last three years passed it.

That might be OK if it meant that California’s attorneys were more competent, and the public better protected against poor lawyering, than in other states. But there is no evidence to support any such contention. The pass rate, as set by the state, is relatively arbitrary.

The low pass rate would make sense if it turned out that fewer California test-takers were as capable or as prepared as their counterparts in other states. But that doesn’t appear to be the case either. The average California score on the multiple choice portion — the one part of the bar exam that is identical in most states — is higher than the national average. ...

California’s legal establishment is more exclusive than those in other jurisdictions, leaving out people who in almost any other state (only Delaware’s exam is as restrictive as California’s) could provide highly competent counsel to those who need it.

More specifically, the unusually high cut score — the term that the testing establishment gives to the line that separates those who pass from those who don’t — means California’s bar is disproportionately white.

A study of the July 2016 exam showed that reducing California’s cut score from 1440 to the national median of 1350 would have increased the number of successful African American exam-takers by 113%. There would have been a 75% increase in success for Latinos, and 58% for Asians. Of course more white exam-takers would have passed using the national median as well – 42% more. But the ranks of lawyers in this state would have been a bit more representative of the population that enters and graduates from law school, and the population of clients who need legal counsel. ...

[T]there is no evidence to suggest that lawyers in states with somewhat lower cut scores — including New York, where the line is set at 1330 — are any less competent than those in California.

Ultimately, it is the state Supreme Court that will decide this question. It is considering how to respond to a demand by the deans of most of the state’s largest accredited law schools to lower the score to something closer to the national mean.

The deans are right. California and its residents have been poorly served by an unusually high bar exam cut score. The court would be wise to adjust the cut score to something closer to the national average — and perhaps then commission a study to determine whether an exam based on early 20th-century methodologies actually determines a person’s fitness to practice law at all.

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Take it from someone who has been a consumer of legal services, bar exams are a poor measure of actual skill as a lawyer. Of far more importance is the drive to put in the work required to win.

Posted by: Michael W. Perry | Oct 9, 2017 6:43:49 AM

Seems kinda racist.

Posted by: TBlakely | Oct 9, 2017 7:31:25 AM

Finally some wider public recognition of the California bar's race problem.

Posted by: Steve Diamond | Oct 9, 2017 11:45:33 AM

Is there any evidence that *any* cut score, no matter how low, affects the capability of lawyers?

Posted by: brad | Oct 11, 2017 2:54:44 PM

Again, the ratio of working lawyers to annual award of law degrees is currently 15 to 1. The ratio for most licensed professions clusters around 22.5 to 1. Squeezing the pus out requires cutting annual admissions by a third. You don't need more lawyers entering the profession, whether or not they're 'diverse'.

Posted by: Art Deco | Oct 12, 2017 5:10:42 AM

Well, it looks like the CA Supreme Court was unpersuaded LOL Haaaaaa! Deans. Ha!

Posted by: Anon | Oct 18, 2017 9:34:15 PM