Paul L. Caron

Wednesday, September 21, 2016

Deans Endorse ABA's Proposed 75% Bar Passage Accreditation Requirement

National Law Journal (2016)National Law Journal:  A Tightened Bar Passage Standard is Needed, by  Daniel Rodriguez (Dean, Northwestern) & Craig Boise (Dean, Syracuse):

The American Bar Association's Section of Legal Education and Admissions to the Bar has proposed tightening up its regulation of those law schools with a significant ­percentage of graduates who have failed their state's bar exam. Under the proposed new accreditation standard, law schools must ensure that at least three-quarters of their graduates pass the bar after two attempts, rather than five, as is the case under the current standards. As with any numerical benchmark, the measure is imperfect, yet its purpose is a sound one.

Law students invest substantial time, money and energy in law school and the prospect that their investment will not, at the very least, adequately prepare them to pass the bar examination is troubling. ...

The ABA's proposal has engendered vocal criticism by a number of law school deans, many of whom lead institutions that have traditionally enrolled comparatively large numbers of students with low LSAT scores and undergraduate grade-point averages. Their basic objection is that a tighter restriction will reduce the opportunities for students of color to obtain a legal education, pointing to historic data that highlights a disparity in scores between standardized test-takers of different racial and ethnic backgrounds. ...

[O]bjecting to stricter standards on the assumption that students of color will be unable to clear a higher bar of success is inadequately supported by the data at best, and condescending at worst. When academic support cannot raise a substantial percentage of the students admitted by a law school to a level of preparation sufficient to permit them to pass the bar, that school should be held accountable. ...

In this difficult economic climate for law graduates, the challenge for law schools is twofold. First, schools must commit to creative strategies to bring in able students who will thrive in law school, pass the bar, and move on to meaningful and successful careers. This is at least as important with regard to students of color as everyone else in the student community.

Second, they must develop mechanisms of student support and academic assistance to measurably increase the bar passage rates of students. That most law schools have been able to do precisely that over the long run indicates that a high bar-exam passage standard can be met. A law school that cannot or will not meet this criterion should not be permitted to continue to operate with the imprimatur of ABA accreditation.

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I wonder how the Wisconsin "diploma privilege" interacts with this proposed rule. Since most of our graduates are automatically waived into practice, without actually taking a bar exam, does that mean the ABA only looks at our students who sit for the exam? That could be a real problem, given the low #s that do so.

Posted by: Jason Yackee | Sep 21, 2016 3:51:41 PM

Dean Boise supports an ABA standard requiring a 75% bar passage rate within 2 years. He hides behind the easy bar examination passage standard in New York (MBE cut score of 130). But his Syracuse graduates fail miserably when they take a difficult bar examination (California MBE cut score of 144). Ninety-two Syracuse graduates took the July California Bar Examination from 2010 to 2015. The Syracuse first-time passage rate was an abysmal 27% (25 out of 92), and the Syracuse graduates’ repeater passage rate was only 24% (10 out of 41). In addition, according to the ABA 509 reports the mean percentage of Hispanics enrolled at Syracuse (2011 to 2015) was only 6.02% and mean enrolled Blacks was only 3.3%.
A national standard that shields schools like Syracuse that are protected by low state bar passage standards but punishes schools, like those in California, that face high bar passage standards that schools like Syracuse cannot meet, is obviously unfair and will only exacerbate the demographic imbalance in the bar.

Posted by: William Patton | Sep 21, 2016 1:12:29 PM

Gonna be interesting to see how schools are going to further their "social justice" and diversity platforms with historically lower passage rates for the "accommodations." Also interesting to see how low schools are going to handle the broad "accommodations" for those falling under the Americans with Disabilities Act and bar passage rates.

Posted by: Tom N. | Sep 21, 2016 12:11:40 PM

The top 100 or so schools need to recognize that the tighter bar standard is going to save their butts. The bottom third of schools attract a large number of reasonably strong students with full or near full scholarships. These students would otherwise pay good tuition at a T100 school, which would allow those schools to lower tuition and spread out the financial burden among more students. The result is more highly credentialed students enrolling, all paying a more reasonable rate of tuition.

The best future for law schools is a very strong top 15-20 schools, followed by 80 or so schools that are all about the same level in student quality and tuition. Schools could then turn to lower flat rates instead of the current regime of ridiculous price discounting based on meaningless differences in LSAT scores, and would instead compete for students based on geographical factors and academic programming differences.

The higher bar passage standard opens the door to these changes, on top of being a very reasonable consumer protection measure in itself.

Posted by: JM | Sep 21, 2016 12:11:10 PM

Your statement that "Objecting to stricter standards on the assumption that students of color will be unable to clear a higher bar of success is inadequately supported by the data" is inaccurate. Stephen Kline, a nationally recognized psychometrician, demonstrated that the passage rate for both Hispanic and Black test takers on the California bar exam increased by 26% when factored on a study of 7 bar administrations rather than 3. In California where the bar passage rate is so low, the 26% difference in minority bar success is the difference between an ABA law school meeting the bar standard and losing accreditation. Further, recent studies submitted to the ABA to demonstrate that most minorities pass the exam within 2 years are both methodologically and statistical flawed. First, those studies assessed a biased sample of law schools that much higher than the national median MBE cut scores and bar passage rates and failed to include states like California that have high numbers of minority law students, very high MBE cut scores and low bar examination passage rates. It does not take a psychometrician to know that in states with easy standards and high bar passage that the persistence level for minorities is low because those who pass have no reason to retake the exam.
In addition, those who oppose the Standard 316 2-year proposal testified at the ABA hearing that many minority law students simply can't afford to take 4 successive bar examinations and that the proposed rule will, in effect, exclude from ABA reporting requirements minority students who pass in fewer than 4 tries but who simply need more time to take the exam.
Much more empirical data is needed before the ABA passes a standard that will unequally affect minority law school applicants in jurisdictions, like California, that have bar passage standards justified only on principles of monopoly, not on consumer protection.

Posted by: William Patton | Sep 21, 2016 11:17:43 AM

"When academic support cannot raise a substantial percentage of the students admitted by a law school to a level of preparation sufficient to permit them to pass the bar, that school should be held accountable"

Bingo! My only fear is that now schools will find a way, after collecting tuition dollars of course, to restrict their at risk students from actually taking the bar (through attrition, mandatory graduation prerequisites, or some other yet to be conceived devious means).

Posted by: Anon | Sep 21, 2016 10:43:20 AM