Paul L. Caron

Monday, July 18, 2011

NLJ: The Impact of Higher Bar Passage Requirements on Law School Diversity

National Law Journal, ABA Again Confronts the Diversity Dilemma: A Renewed Push for Higher Law School Standards Has its Downside, by Karen Sloan:
[The ABA] is trying to reconcile the legal profession's need for greater diversity with its desire to push law schools to better prepare students to pass the bar. For the second time in four years, it is considering raising the minimum bar-passage-rate requirement as part of a comprehensive review of law school accreditation standards. ...
The hope is that higher standards would push schools with lower passage rates to invest more in academic support and bar preparation. ... They also would serve a consumer-protection function, assuring law students a reasonable expectation of passing the bar.

The ABA has already signaled that it takes bar-passage rates seriously. It revoked provisional accreditation from the University of La Verne College of Law in Ontario, Calif., in June because of the school's low bar-passage rates. In 2009, a scant 34% of La Verne students passed the California bar examination on the first try, and the school's first-time bar-passage rate was 53% in 2010 — improved, but still not good enough, according to the ABA.

Applying a bright-line bar-passage standard is a fairly new idea for the ABA. Before 2008, the ABA spelled out no specific bar-passage minimum. Instead, it enforced what was called the "70/10 Rule": At least 70% of the school's first-time bar takers had to pass the exam in the school's home state. In the alternative, the first-time bar-pass rate could be no lower than 10% below the average of other ABA-accredited schools in that state.

The U.S. Department of Education, which has authorized the ABA to be the national accreditor of law schools, asked for a clearer standard in 2007. After protracted wrangling, the ABA adopted a requirement that at least 75% of a law school's graduates pass the bar exam in at least three of the past five years. Schools can also meet the standard if their first-time bar-passage rate is no more than 15% below other ABA schools in the same state during three of the past five years. The 15% requirement is intended to level the playing field across states, given that passage rates vary widely depending on jurisdiction. The outcome was a compromise, representing a minimum standard higher than what diversity advocates wanted but lower than the initial proposal. ...

The new proposal would require that at least 80% of graduates pass the bar in three of the past five years, or that first-time bar-passage rates be no more than 10% below other schools in the same state — bringing the standards closer to the test used before 2008.


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I graduated from a top 25 law school in May of year #1. I took the NY bar in July of Year #1. I got the results of the bar exam in December of Year #1. I had my character and fitness interview sometime in early Year #2. I was sworn in the last day of April of Year #2. So the whole Michelle thing is a distraction.

The more telling point is that my 1L roommate at my Top 25 law school had an LSAT score of 151 (according to US News, I know I know, average score was around 159 or 160), he went to Community College for 2 years and got an A.A., and transferred to/enrolled in a quality school for 2 years and got a B.A. His B.A. grades were not remarkable at all. He also got a hefty amount of scholarship money from the Top 25 law school.

Paragraph #2, not #1, is the problem. I have no problem with affirmative action or even a quota system so long as you get to use your "Get Out of Jail Card" only ONCE. If you do not prove yourself after using the get our of jail card (because I am a minority), then you should not get a second bite at the apple. You get the chance to prove you are smart enough to make the grade. You should not keep getting it over and over and over (admission to college, admission to law school, hiring by law firm, etc.). At some point you need to be judged on your merits after being given your "opportunity" to show that you are better than your numbers indicate.

Many minorities are disadvantaged, and personally I think green is the color that really matters most. Giving a disadvantaged students the opportunity to prove themselves is the right thing to do. Having support mechanisms in place to help, but not ensure (because who can guarantee) success are important too. They should be given the chance to make the grade. But, if after that opportunity all you are left with is a mediocre student you do a disservice to them and to other minorities who made the grade (but some will think didn't).

Additionally, setting someone up for failure is cruel. I know how my 1L roommate did grade-wise and bar passage-wise. It was not fair to him to put him in a school where he had to take out loans only to perform average at best and not pass the bar for many years. If he had been admitted to schools that non-diversity candidates would have been offered admission, he may have questioned whether it was worth it to law school if he would have to go to a lesser school. It was cruel, and I really felt bad for the guy and angry at the school. Angry not because they let him in with marks that did not deserve admission (not because he is a minority), but because they let him in with marks that did not deserve admission (he was doomed not to succeed). He was a really nice guy, but he was not smart enough to be there. And as much as he propped me up on the curve, I wish he had not been taken advantage of by the school.

He had used his get out of jail free card, and he should not have been allowed to use it again to get into law school.

Posted by: tax guy | Jul 23, 2011 4:00:59 AM

Can't think of a better reason to justify $200,000 in debt at a school than that the school at least purports to do what it advertises: prepares students to practice law.

Posted by: ronin | Jul 19, 2011 4:20:40 PM

Perhaps the accountability of the school is through teaching and grading with sufficient rigor that the only students to actually graduate are those that CAN pass the Bar.

Posted by: Jim | Jul 19, 2011 4:10:18 PM

"Diversity" is "Affirmative Action" with lipstick. I won the Hispanic Scholarship for my UTA law school class by virtue of the fact that I was born in South America, making me Hispanic, by definition. I suppose I also had the best academic credentials of my Hispanic cohort.

But I am White, Irish, born with an educational silver spoon, National Merit graduate (among 14) of a Suburban Chicago High School that had no students of color, no Jews and no Asians.

Real diversity might be achieved in Law School by admitting a couple of students prepared in STEM. In my class of 135, I was one of five or so that had the slightest inkling of math and science. The rest were wishy-washy humanities and liberal arts grads.

Pre-law types, like pre-med types, don't take any hard courses, like advanced physics, chemistry or math, in college. The prefer to stay dumb to getting a grade below an A. I know: I was cursed with having to teach college classes in Baby Physics and Baby Math to those arshleckers.

So we will no doubt be stuck, for years, with STEM ignoramuses on SCOTUS and on lower courts, not to mention POTUS and COTUS, where only 8 or so distinguish themselves by knowledge of STEM. We will no doubt need the Chinese to awaken us to the importance of STEM, just as it took the Russians to awaken us with Sputnik in 1957.

Posted by: Malthus | Jul 19, 2011 3:46:05 PM

Yeah, I wonder, did the people throwing virgins into volcanos believe in their garbage as fervently as the reverse racistsdiversity folks do? I mean, you graduate with six figures of debt and the only job you can get is doc review? Not every diversity grad gets to be hired as a diversity token by big law. right?

The sad thing is that 80% of law schools are worthless. The faculty is just sucking up the tuition dollars of suckers who are being led to believe that their degree is a ticket to something better.

Would it be bad if there were a diversity track in life, where a diversity type can only hire a diversity lawyer or doctor or a car built by diverse engineers.

Anyway, of course the schools get held accountable for the success of their grads. How else do you rank them?

Posted by: anontono | Jul 19, 2011 2:49:53 PM

Michelle Obama

"Illinois Registration Status: Voluntarily inactive and not authorized to practice law - Last Registered Year: 1993"

and regarding her malpractice insurance status, the entry is:

" attorney is on court ordered inactive status"

what does that mean?

Posted by: charleston | Jul 19, 2011 2:45:09 PM

It's unreasonable to hold a law school accountable for the performance of its students:
a school cannot force students to study, to learn, or to prepare for and pass exams.

A law school should be accountable only for presenting the curriculum in an orderly fashion, and not much else.

Shifting the accountability for results from the students to the school, as proposed by the ABA, is akin to
adopting the approach of No Child Left Behind—-not to tots and teenagers, but to adults.

Posted by: Jonathan Silber | Jul 19, 2011 2:18:00 PM

As we all started our first year of law school, there were a number of black students who were admitted under "less intense" requirements. (I'm not speculating or bad-mouthing; they were all pretty up-front about it.) A nice, personable group of men and women, all of us excited and nervous to get started, all of us sort of pledging to each other that we'd all work our butts off and do well as a group.

And we all did work hard, especially the black students admitted under the "diversity" requirements. They all knew that their low admission test scores indicated something - whether it was a lack of prep in the right areas, or what, none of us really knew - I know it wasn't intelligence, as they were to a person a bright, bright group, and I knew it wasn't lack of willingness to work, as their study habits as a group tended to put mine to shame - but they all had this sort of undertone of dread about how things would work out.

And then, as the year progressed, one by one, they started losing it. Bad quiz and exam scores, briefs that missed points - for whatever reasons, these bright and hardworking people all - all! - were gone by second year's end.

We studied together, hit the bars together, complained about flaky profs together, and none of us really ever figured out why this was happening. There was something in their past schooling/training/upbringing that was missing, that the rest of us had apparently not missed, that kept them from turning that intelligence and work ethic into good test results.

In the end, I just felt bad for most of them. I don't know what more they could have done, or what they could have done differently, but they were not well-served by the program.

Posted by: bobby b | Jul 19, 2011 1:55:03 PM

So, the affirmative action students are going to get even more help, help to pass the bar exam. Then the socialist-progressive=democrats will holler for diversity on the bench, and these numb-nuts will be our judges. How stupid. For the most part, wealthy White liberals can push for affirmative action because the seats taken for unqualified minorities are coming from middle- and lower-class Whites. The wealthy, because of their status and connections, haven't been sacrificing to make way for the "affirmative action" pension-fund children. But the nonsense needs to stop.

Posted by: Milwaukee | Jul 19, 2011 1:36:44 PM

Reality bites you are a fool. Bar exams are given by all 50 states and the district of Columbia on the same 2-3 days every year. The MBE is always on exactly the same day within those two or three days . The summer bar exam is in July and the winter bar exam is in February. Every state that I am aware (New York, California, Texas, Florida) makes the summer bar results available no later than Thanksgiving of that same year. They make the winter bar results available by April. The amount of paperwork you have to complete (references, character and fitness background check, etc.) is nothing compared to the actual practice of law and hundreds of thousands of future attorneys have managed to get the paperwork filed in time to be admitted at the earliest date possible in the year that they pass the bar exam. Secondly, there is no need to be sworn in at a ceremony. Some people are sworn in by a judge, but easily 95% of the several hundred attorneys that I know personally and work with were not sworn in at a ceremony. You just submit a form to the bar association and it is done by mail. Finally, anyone who wants to work as an attorney (especially associates at AMLAW 100 firms, like Michelle Obama) want and are expected to obtain their license as soon as they possibly can.

You can cover for her if you want, you can be dishonest if you want but she obviously failed the summer bar exam, took the winter exam the next year, passed it and was admitted in May.

Posted by: pp91303 | Jul 19, 2011 1:32:56 PM

The last thing any minority community is more underqualified lawyers chasing more ambulances. Or ineptly plea-bargaining their neighbor's sons into long prison terms because the lawyer is afraid of trial.

The burden is on law schools to convince really QUALIFIED minority persons that the law is the best tool for them to use to (1) make a good living (FIRST priority in the real world) and (2) improve the lot of their group in society in general. If they can do better as McDonald's franchisees, law schools will continue to get underqualified applicants. They then face the inexorable rule of life that neither education nor tutoring produces intelligence. Both techniques just polish up what is (or is not) already there.

Maybe more "selectivity" would be better in the long run.

"Wishing it so" simply doesn't produce results.

Posted by: Law Prof | Jul 19, 2011 12:53:10 PM

"legal profession's need for greater diversity" is the sacrifice the legal profession makes to their political masters. Beats throwing virgins into a volcano, I guess.

Posted by: pashley1411 | Jul 19, 2011 12:25:30 PM

Reality bites - the is at least one reason to think that Michelle Obama failed the bar; namely, that she was not admitted until May of the year after she graduated. I don't know how quickly bar applications were processed (1) in Illinois, (2) when she graduated. But, if you graduated from law school in May of this year, and were not admitted to the Illinois bar until May of next year, I think that would constitute pretty strong circumstantial evidence (admittedly, not dispositive) that you failed at least one bar exam in the interim.

Posted by: Tim H | Jul 19, 2011 12:17:26 PM

reality bites:

I disagree - I am fairly positive California waits the longest of any state to release results of the bar exam, and their results come out the week before Thanksgiving. I don't know anyone who waited another six months to get their licensing paperwork in order; everyone I know had that done long before the results were even out, primarily because most of it has to be done before you take the exam in the first place. I was licensed less than a week after learning I passed, and this was back in the old days, before anyone used the internet.

Illinois released the results of its most recent July exam on October 1. Assuming it was about the same back in Michelle Obama's day, you're saying "normal delays" would make her wait eight months to become a lawyer? Not likely.

Posted by: DBinSD | Jul 19, 2011 12:09:51 PM

Um, what is "the legal profession's need for greater diversity"? I think the legal profession needs better lawyers who are ethical, respect the constitution, and can do their job.

Posted by: notme | Jul 19, 2011 11:53:05 AM

Ed D

There's no reason to believe Michelle Obama failed the bar exam.

1. The bar exam is in late July or in the winter, not in May when you graduate
2. You don't get your score back for many months after you take the exam--essays take a long time to grade
3. The amount of paper work you have to put together to apply for admission is incredible and time consuming
4. The government runs admission ceremonies in batches, so it can be months between when you get everything together and when your ceremony is scheduled

Graduating in May and being admitted to the bar the following May suggests that she passed the bar the first time around, given all of the normal delays.

Posted by: reality bites | Jul 19, 2011 6:02:07 AM

Take a look at Michelle Obama's admission date on the website. She graduated from HLS in May, but was not admitted in Illinois until the May of the following year.

Diversity is great, but you gotta pass the Bar.

Posted by: UnemployedCooleyGrad | Jul 18, 2011 8:52:37 PM

Being politically correct, I have no idea what the article was driving at. Students from Wyoming (the old diversity urban legend about how to get into Harvard)?

"The ABA] is trying to reconcile the legal profession's need for greater diversity with its desire to push law schools to better prepare students to pass the bar....

The hope is that higher standards would push schools with lower passage rates to invest more in academic support and bar preparation. ... "

My evil twin (not politically correct) assures me that diversity students were less credentialled when admitted. Apparently, they are still less credentialled after attending 3 years of law school, since they apparently pass the bar exam at lower rates than the non-diverse students.

The out-of-the-box answer is bar prep. Will additional bar prep be provided only to the diversity group? Am I the only one that detects an "Alice-in-Wonderland" quality?

Regardless of whether one views the bar exam as an actual test or a stupid licensing requirement, most near-lawyers realize they have to pass and put in some effort to pass. If the diversity group needed help to get into college, then law school, then to pass the bar, what type of magical thinking makes one believe that the aided diversity person has now finally "caught up." (I have taught as an adjunct for over 10 years and have been warned by friends not to even think these thoughts while on campus.)

As an aside, Asians (Japanese, Chinese, Indians) seem to occupy a special niche in the diversity pantheon. It seems steps have to be taken to avoid too much Asian diversity. It brings back recollections of the old Jewish Quota. (Look it up if it's before your time.)

Is diversity helpful at all? How does sitting next to a diverse student improve/braoden the quality of my thinking? Does the diverse student benefit from my presence? How? If it is known that diverse students are less credentialled and now are given some type of boost to pass the bar, does this make them more highly regarded by the general public? By themsleves? How does it make the diverse student, who needed no diversity assistance, feel? How can the general public distinguish the diverse student who needed a boost from the one who didn't?

I cannot see the logic - this article does nothing to resolve the diversity conundrum.

Posted by: Ed D | Jul 18, 2011 11:35:25 AM