Paul L. Caron

Monday, February 4, 2008

Law Schools in Jeopardy of Failing ABA's New Objective Bar Passage Accreditation Standard

On Saturday, I blogged the ABA's expected approval, at its meeting this week in Los Angeles, of a new objective bar passage standard for law school accreditation.  Under proposed Interpretation 301-6, over a five-year period (1) 75% of a school's graduates must have passed the bar, or (2) the school's annual first-time bar passage rate in state(s) in which at least 70% of its graduates take the bar must not be more than 15 percentage points below the average first-time bar passage rate in that state(s) for at least three of the years.

The charts below use only a single year's data to illustrate law schools that might be in danger of failing Interpretation 301-6's objective standard. Here are the seven schools under the 15% threshold based only on the single year's bar passage data from the Internet Legal Research Group from the the July 2005 and February 2006 bar exams:


Here are the seven schools within five percentage points of the 15% threshold based only on the July 2005 and February 2006 data:


Below the fold are the sixteen law schools within 5-10 percentage points of the 15% threshold based only on the July 2005 and February 2006 data:


Update #1Gary S. Rosin (South Texas) has an extended discussion in Reports and Comments on Proposed ABA Interpretation 301-6.

Update #2:  In response to several commentators, I have corrected the post to make clear that (1) the 75% and 15% tests apply over five-year periods and are alternative means of satisfying the proposed new standard; and (2) the charts list only one year's worth of data from this site and thus identify schools close to the 75%/15% thresholds for that one year only.

Update #3:  See this 2/8/08 post on the ABA's FAQ on proposed Interpretation 301-6.  As I said there:

In my earlier post, I included tables listing law schools that were close to these 75%/15% thresholds in a one-year snapshot of data.  As I explained in the post, and several commentators pointed out, proposed Interpretation 301-6 measures bar passage rates over a five-year period.  Schools that fall below the 75%/15% thresholds in any one year thus can (and often do) easily meet Interpretation 301-6 when measured over the requisite five-year period, especially when the differences between bar passage rates for first-time and non-first-time test-takers are factored in (which they are not in the one-year data).  And in any event schools that are out of compliance with the 75%/15% thresholds for the five-year period can obtain an extension upon a showing of good cause.  I apologize to any schools that feel unfairly maligned by my prior post's use of the incomplete one-year data.

Update #4: In response to additional comments, I have updated the post to clarify that the Internet Legal Research Group data is from the July 2005 and February 2006 bar exams.

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Recently, there have been postings on this blog and others regarding Pepperdine University School of Law's Class of 2006 employment data. I am the Assistant Dean for Career Development at Pepperdine, and I provided the employment data that was reported to the ABA and USNWR in the Fall of 2007. The data provided to the ABA and USNWR was complete and accurate.

I joined Pepperdine's Career Development Office in late March 2007 during a period of significant staff turnover and restructuring. Later, while preparing the Class of 2006 employment reports for the ABA, it became clear that the graduates previously classified as "studying for the bar" or "not seeking" had not been contacted to verify their actual employment situation. In order to provide accurate data to the ABA, those graduates who could be found (all but 3) were contacted, and their actual employment status as of nine months after their graduation was verified and reported to the ABA. This same data was subsequently submitted to USNWR, and then, NALP was updated with the verified employment data.

Previous blog discussions with respect to this issue appear to rely on the earlier, unverified employment data. That is mistaken. The information reported by USNWR in March 2008 accurately and comprehensively reflects Pepperdine's actual, verified employment data as provided both to the ABA and to USNWR.

Selina Farrell
Assistant Dean for Career Development
Pepperdine University School of Law

Posted by: Selina Farrell | Apr 4, 2008 2:46:00 PM

I just read 301-6 in full. It will have VERY interesting implications for reporting of bar pass rates.

BOTH criteria require that schools report bar pass rates in enough jurisdictions to account for at least 70% of their graduates over the designated time frames. They also mandate that the school first use the jurisdiction where the largest number of graduates sat; if this is not sufficient to account for 70% of the graduates, the school then must add remaining jurisdictions, in decreasing order of frequency, until reaching 70% (or whatever larger number they may need to meet the standard).

As an example of how this will work, take Appalachian's class of 2007. ASL reports the most recent bar pass stats for every jurisdiction in which their graduates sit at this page:

In 2007, Appalachian had 104 graduates sit for a bar. One examination was pending administrative review and was not included. Taking 103 as the number of graduates, ASL would have to include bar pass rates in enough jurisdictions to account for 73 graduates (70% of 103 is 72.1).

ASL's most common jurisdiction in 2007 was Tennessee, but only 27 graduates sat there. In order to get to 73 graduates, they then have to add their next-most-frequent jurisdictions in descending order of examinees. These would be Virginia (23), North Carolina (15), and Kentucky (9), for a total of 74.

Of these 74 students, 56 passed the bar on the first try, for a pass rate of 75.7%.

For the second criterion--first-time passage in three of the preceding five years--the comparison pass rate is specified as the weighted average of ALL reported jurisdictions (presumably weighted by the number of graduates sitting in each jurisdiction).

What this means:

(1) The report of "schools in danger" does not necessarily reflect how many will actually be in trouble under the new standard. For example, Appalachian typically does not have even 30% of its students sitting in any one jurisdiction, and, AFAIK, my "in-danger" alma mater of Regent typically sees only about 40% of its graduates (if that) sit in Virginia. (Full disclosure: I passed Kentucky on the first try.)

(2) This will likely cause pressure on bar examiners to report bar passage statistics for EVERY individual school, including out-of-state schools. I know Ohio reports pass rates for every single school whose graduates sat for the bar, but I don't know which other states, if any, do. For example, Kentucky reports pass rates by individual school only for its three in-state schools (UK, U of L, NKU). Out-of-state schools are currently reported collectively.

Posted by: Dale Arnett | Feb 18, 2008 2:06:44 PM

Rex @ 2:00:42 said: "Arizona State at risk of losing accreditation? I suppose there's a first time for everything."

Look at the 5-year averages at

ASU's bar passage rate is 1.3 percentage points above the state average. (ASU-76.70% State-75.40% Difference-+1.3%)

That makes sense given that there are only two law schools in Arizona, those two law schools are quite similar, and they provide the vast majority of Arizona's bar takers.

Posted by: Mike McDougal | Feb 16, 2008 2:40:59 PM

To the posters who were commenting on the ABA's classification of "home state" (e.g., Appalachian and Widener): It's based on the state in which the largest number of graduates sat--not necessarily the state in which the school is located. For example, Appalachian had more graduates sit for Tennessee than for Virginia in 2005 (and also in 2007).

Which brings me to another gripe with the ABA's reporting... why shouldn't they require that schools report nationwide bar pass rates, with the comparison pass rate being weighted to reflect the percentage of students who took each individual exam? Or Ted Seto's proposal: report median MBE scores for every school in the country (granted, some schools are in states that don't require the MBE)?

Posted by: Dale Arnett | Feb 13, 2008 2:54:32 PM

get rid of the aba..its as bad as the ncaa...old guys trying to justify their jobs

Posted by: joesmith | Feb 10, 2008 4:29:01 PM

The reality is that Bar pass rates can vary from year to year and this is the reason that each of the two rules composing 301-6 take into account results over multiple years. Many schools have occasional dips and this is the problem with trying to make a point with single year numbers that do not fully account for the actual complexity of the various criteria involved.

Going back over the past five years on Bar pass rates at Syracuse Law we have readily complied with the 301-6 standard under the above tests. I do not expect this new rule to have any impact on our program, nor for that matter on the programs of all but a very small number of law schools in the country.

The suggested need for concern as to accreditaion issues at our law and others on this list is unfounded and unrealistic.

Posted by: Robin Paul Malloy | Feb 8, 2008 6:38:46 AM

The underlying data on which you rely is described as being from 2007 but is actually the combined bar pass rate for first-time takers in Summer 2005 and Winter 2006. My school, CUNY, had a Summer 2007 first-time bar pass rate of 82.5%, well above the state average. It is misleading for you to characterize these schools as "at-risk" on the basis of old data and not the five-year average specified under the ABA standard.

Posted by: Sameer Ashar | Feb 7, 2008 11:44:21 AM

Any changes by the ABA will just lead to more corruption and game playing, as was recently seen in South Carolina:

Posted by: Not Bob Jones | Feb 7, 2008 6:26:08 AM

A related problem is the standard used by State Board of Bar Examiners. California does a great job in assuring that students each year are graded on a standard based on some prior year baseline. Other states seem to maintain a relatively stable bar passage rate, which leads in some years to weaker students being admitted and in other years for competent students being denied. The California approach is expensive but it is the only way this new ABA standard will work.

Imagine a state where the bar passage rate never moves very far from 70%. The new ABA standard is approved and one law school (the weakest in the state) loses accreditation and shuts down. Since the bar passage in the state is not tied to an objective standard the second weakest law school in that state becomes the target and within a few years it to loses accreditation. Theoretically it should be possible for a state to have a 100% bar passage rate but I am not sure that many states other than California have a system that provides the Board of Bar Examiners with the data they need to allow for that rate. This ABA reform must be tied with Bar exam grading reform for the new ABA rule to mean anything.

Posted by: Beau | Feb 7, 2008 3:37:56 AM

Not surprising that Touro is up for sale given these stats. Will be interesting, if Touro is sold, whether the purchaser then could get de-accredited based on Touro's stats for previous years.

Posted by: Too Many Schools | Feb 6, 2008 12:48:29 PM

To the Pepperdine Professor:

Why does your school website tout to prospective students a 2006 "95.9 % employed rate in 9 months" (changed from 98% a few months ago) with out any other detail when, according to your Career Services Staff, and i quote:

245 graduated in 2006
194 indicated that they had a job (79.2%)
2 were unemployed and seeking work (0.8%)
8 were unemployed and not seeking work (3.3%)
16 were enrolled in full-time degree programs (6.5%)
23 were studying for the bar full time (9.4%)
2 were of unknown status (0.8%)

The ABA, and US News have done away with the "not seeking work, studying for the Bar" loophole, so wouldn't you say that it is a least a bit misleading to prospective students attempting to engage in a cost benefit analysis using the presumably accurate information provided by the school??? 95.9 employed, yet 79.2 had a job???

Posted by: Employment Stats | Feb 5, 2008 12:27:32 PM

I would echo and reinforce Mark Scarberry's suggestion that readers actually take a look at the proposed standard. The information included in the charts in Paul's blog post is misleading, and the conclusion that Paul reaches on the basis of that information - "As the following chart illustrates, using only 2007 data (minority enrollment, bar passage), seven law schools would have failed the 75%/15% requirement." - is then simply inaccurate.

The pass rates listed in the chart include not just first-time takers but also retakers (at least I know that to be the case for my institution, Thomas Jefferson, and I assume it to be the case for the others). Yet the ABA interpretation explicitly states that the 15% rule applies to a school's first-time takers' pass rate. Hence, comparing a school's pass rate for all takers (first timers and retakers combined) to a state's overall pass rate fails to tell us whether a school would satisfy the standard.

For Thomas Jefferson, our first time takers who sat for the Feb 07 CA exam actually passed the exam at a rate that exceeded that of the state average for first time takers from ABA accredited schools, let alone being within 15% of that figure. And for the July 07 exam, our graduates taking the bar for the first time in CA passed the exam at a rate well within the 15% required under the new ABA interpretation (indeed, I believe it was within about 5% of that figure).

Moreover, as Mark indicates above, the 75% rule applies to all graduates rather than just the graduates who sit for the bar exam in a school's home state. As a result, the charts above tell us nothing relevant to the new ABA interpretation of Standard 301-6.

To be clear, this is not Paul's failing, but a failing of the underlying data. Still, the charts are misleading enough that the record really needs to be clarified.

Posted by: Eric Mitnick | Feb 4, 2008 9:21:00 PM

Victor Erimita:
Not true. Oregon has had a passage rate (according to of about 68-70% (guesstimate averaging).

But if the ABA requirement is an A OR B test, as opposed to an A AND B test (as stated in the article but refuted in the comments), then the minimum passage rate is the LOWER of 75% or the state average minus 15%.
This makes me think differently than my previous comment (as much as I hate the ABA), that this creates a small incentive to lower bar passage rates. A small enough incentive that no one will care, but it is there nonetheless.

Posted by: EvilDave | Feb 4, 2008 4:30:27 PM

This is going to be a touchy issue.For one thing,it is likely non elite schools with substantial minority (excluding Asians as a 'certified minority') will have lower pass rates.This is not something I have any professional expertise regarding.However,with regaards to med schools,the AfricanAmerican Boards pass rate was about 50% in the late 90's.And no one knew what to do-and still don't.Some of the nmore touchy-feely med schools seemed to have poor pass rates regardless of the ethnicity of their students.I don't have a solution and am glad I don't have to deal with the problem.

Posted by: corwin | Feb 4, 2008 4:20:50 PM

Widener's law school campus is actually in Delaware off of rt 202 north of Wilmington (though the University Campus is about 10 minutes north on I-95 in West Chester Pennsylvania). This the only law school in Delaware, and has a large % of students who take multiple bar exams in the same year (DE NJ and PA usually). Also Delaware residents make up a large % of the student body. I don't understand how the ABA would decide what a law school' home state would be (most Widener students take multiple bar exams in the same year (DE NJ and PA usually)), but if it is based on physical location of the school, then Widener's pass rate should be compared to Delaware's and not PA's. This would be bad news for Widener. As I understand it the Delaware bar exam is much tougher than Pennsylvania's.

Posted by: Chris Roede | Feb 4, 2008 4:00:29 PM

50% attrition rate at Whittier? WOW!! My school's (U of New Mexico) attrition rate was so low I can remember each and every one of the few people who crapped out.

I looked at the list of law schools above (except for Arizona State law, my alma mater) and laughed because that entire list is comprised of schools I remember thinking that I would NEVER attend. Those law schools are so easy to get into many people who should have never been there in the first place are admitted. And, the people who ultimately crap out are ususally the ones who liked the idea of being a lawyer until they actually saw how much work it was.

I think we'd all be better off if just about every one of those schools were shut down for good.

Posted by: Sly Bri | Feb 4, 2008 3:58:15 PM

The State of Oregon has had a pass rate percentage in the 40s for many years. Either applicants in Oregon are somehow uniquely less qualified than in many other states, or someone is trying to restrict competition. Are state bars with chronically low pass rates going to lower the barriers to entry to the profession just to accomodate the ABA?

Posted by: Victor Erimita | Feb 4, 2008 1:12:50 PM

"That raises the issue of what to do when the state bar passage rate is below 75%.
This pretty much dictates that the state bar passage rate for all states be 75%."

This doesn't follow at all - as long as your avg. is within 15% of the statewide avg., the 75% test does not apply. See the actual proposal in the linked PDF. In fact the 75% is just window dressing - no state has an avg. above 90%, so the 2nd test (the 15% test) is the only one that will ever count. Since state pass rates range from 62 to 83%, the actual minimum requirement will be from 47 to 68%, depending on the state. Requiring 47% of your grads to pass the bar exam - that's what I call "getting tough". Right.

Posted by: Jack Denver | Feb 4, 2008 1:07:33 PM

Law schools should be preparing students to succeed in practice by providing quality, ethical representation for clients, not teaching to the the bar exam. Given that the bar exam bears no relationship to practice or success in practice, it's bizarre that the ABA would make this an accreditation issue. Both the ABA AND state bar authorities need to focus their standards for entry into the profession on what counts, not artificial barriers to entry.

Posted by: Sheri | Feb 4, 2008 12:36:01 PM

Graduating from law school and passing the bar are two different animals (the multi state part is relevant how?). Any stooge who did not attend law school, who took a bar review class, and seriously studied could pass the bar. If you want to blame someone don't blame the law schools, blame BarBri...

Posted by: Tom W | Feb 4, 2008 12:28:18 PM

Readers who do not carefully read Paul's prior blog post on the proposed interpretation are likely to get an impression that the schools in the charts--which do not include my school but do include schools for which I have substantial respect--are in more danger than they actually are in. Even a reader who does read it may think there is more danger than is real.

I say that for three reasons. First, pass rates are likely to be much higher if those who fail on the first attempt but who succeed on a later attempt within several years are included, as will be permitted under the 75% test in the proposed interpretation (so long as a graduate has passed some bar exam during the relevant five year period). Second, the no-more-than-15%-below-ABA-average test is a three-years-out-of-five test; it will be satisfied if a school's pass rate is high enough in three of the five most recent calendar years. And third, the proposed interpretation does not require that a school meet both tests (the 75% test and the 15% test). A school will be in compliance under the proposed interpretation if it satisfies either test. Paul's prior blog post makes that clear, but in this post he says that a school must satisfy both tests.

Paul notes that the chart data are for one year only, which is important. As noted, a school can satisfy the 15% test so long as it meets it for three out of five years. More importantly, the 75% test allows bar passage by repeat takers who graduated within the prior five years to count toward the 75%. Consider, for example, a student who graduated in 2004, who failed the July 2004 bar, but who passed the February 2005 bar. That student would count toward the required 75% pass rate. And the 75% test is satisfied if the aggregate bar passage over the five years is at least 75% or if the rate for at least three of the five years is at least 75%. In each case we would count success on a bar exam by those students during the five year period, which thus would allow a lot of time for repeat taking of bar exams, at least for students who graduated two, three, four, or five years ago.

In addition, a school would not need to satisfy both of the tests (the 75% test, and the no-more-than-15%-below-ABA-average test) to be in compliance. A school would be in compliance if it satisfied either one. The proposed interpretation begins:

"A. A law school's bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests: ..."

At least that's how I read the proposed interpretation. I don't have an opinion yet on whether the proposed interpretation is a good idea, but I do not think it creates much danger for most of the schools in the charts.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

Posted by: Mark Scarberry | Feb 4, 2008 12:21:08 PM

It would be good to see the ABA accredit law schools on the basis of objective qualification and not on the extent to which a school adds points to grades and LSAT scores.

It's nice to see the ABA coming back around to reality.

Posted by: Chris | Feb 4, 2008 11:34:26 AM

Arizona State at risk of losing accreditation? I suppose there's a first time for everything.

Posted by: Jonathan | Feb 4, 2008 11:10:13 AM

Wow, I can't believe that the state bar pass rates are so high now. They certainly weren't that high when I passed the bar in 1982.

Posted by: Rex | Feb 4, 2008 11:00:42 AM

That raises the issue of what to do when the state bar passage rate is below 75%.
This pretty much dictates that the state bar passage rate for all states be 75%. As, the state bar isn't going to let big law schools get de-accredited. So, you switch to grading the state bars on a curve.
Wow this has bigger ramifications then I thought.

Bar passage is now essentially being taken out of the domain of the state bar and into the hands of the ABA.
If the ABA is going to nationalize state bars, the next question is why doesn't the Fed just take over accreditation and lawyer regulation?

Posted by: EvilDave | Feb 4, 2008 10:56:01 AM

I don't think Appalachian is quite as bad as it looks. It is located in Grundy, VA, not Tennessee. FWIW

Posted by: Mike | Feb 4, 2008 10:54:52 AM

Appalachian School of Law is incorrectly listed as being located in Tennessee. ASL is actually located in Virginia.

Posted by: Damon Gunnels | Feb 4, 2008 10:45:53 AM

This has been needed for a long time. A lot of the schools above are nothing but money machines for the professors who teach there. They really don't care about the bar passage rates right now. It is unfortunate that the ABA allowed this scam to fester for so long. The ABA doesn't really want to get rid of these money machines; they just want to do just enough to keep the Dept of Education off their back and nothing more.

The ABA really needs to stop accrediting these fly-by-night diploma mills. The AMA limits the amount of medical schools in the country. The ABA could easily do this.

Posted by: law school student | Feb 4, 2008 10:41:05 AM

This is weird. Southern University Law Center has made major efforts and great strides in improving bar pass rates over the past several years. The stat you have listed here looks like the 2005 stat (38% pass--I'm pretty sure this is just first timers). In 2006, after implementation of an aggressive new program of early-bird review programs, Southern's bar pass rate jumped to 56%. On the July 2007 exam, Southern's bar pass rate was 54.1%, within 8 points of the Louisiana state average of 62.0%. I'm curious as to who supplies these data, as the number you have here don't appear to be 2007 figures . . .

Additionally, I thought the two criteria were disjunctive; that is, a school could meet EITHER the 75% standard OR the "no more than 15 points away from state average" standard. Did I misread something?

Posted by: Jason Kilborn | Feb 4, 2008 9:47:19 AM

One should also take a glance at the 1L attrition rates for these schools (Whittier 50%!!!!!)...That these schools (under) achieve these rates consistently (for years) after weeding out 2/3 of their class by graduation is appalling...this is a social justice issue...anyone see an subprime analogy here? Get some teeth ABA!

Posted by: Sub Prime Applicants | Feb 4, 2008 9:33:12 AM

This issue has not received all that much attention from the law blogosphere. Of course, neither the elite schools, nor the non-elite schools in Tiers 1 through 3, worry all that much about Bar passage rates. Not that there aren't exceptions, and even scattered Dean(s) who lost their heads over the Bar passage rates.

As I understand it, 301-6 will be before the Section Council this month. Upon Council approval, it will be immediately sent to the House of Delegates on the "consent" docket.

Posted by: Gary Rosin | Feb 4, 2008 9:27:05 AM