Boise & Morriss: The Shameful Truth Is That Many Law Schools Have Admitted Students With Low LSAT Scores To Prop Up Tuition Revenue And Now Seek To Avoid Accountability For The Ensuing Poor Bar Passage Results

TaxProf Blog op-ed:  Preparing Graduates to Pass the Bar Exam Should Be a Central Obligation of All ABA-Accredited Law Schools, by Craig M. Boise (Dean, Syracuse) & Andrew P. Morriss (Dean, Texas A&M):

We write in response to Indiana University law dean Austen Parrish's recent op-ed in the Indiana Lawyer criticizing the new, higher bar passage standard approved last month by the ABA's Council on Legal Education and Admission to the Bar. See Indiana Dean: The ABA’s Troubling Focus on The Bar Exam, TaxProf Blog (Nov. 17, 2016).

Dean Parrish opposes the higher bar passage standard principally because he believes that the bar exams administered by virtually every state are not good measures of competence to practice law, and law schools therefore should not be held accountable for their students' performance on them. Unfortunately, Dean Parrish's conclusion does not follow from his premise and this mistake taints his analysis. No matter whether bar exams test practice skills or not, passing the bar exam is a hurdle that law graduates must clear to practice law. Preparing graduates to pass the bar exam has thus long been a centerpiece of legal education and represents a focus that is neither "emerging" nor "troubling." It is, in fact, a central obligation of all ABA-accredited law schools.

Standard 301 of the ABA Standards, titled "Objectives of Program of Legal Education" requires that a law school "maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession." Bar passage and membership in the legal profession are at the heart of the mission of legal education, and it is the responsibility of the ABA to ensure that mission is fulfilled. The ABA would be failing miserably in its duty as the accreditor of the nation's law schools if it adapted its standards to ensure their survival rather than the success of law students.

Dean Parrish is also incorrect when he claims that by focusing on bar passage the ABA "directs power from a national level to a local one." The power in admission to the practice of law has long been vested in state bars and is, by definition, local. By requiring graduation from an ABA-accredited law school most states acknowledge the ABA's role as accreditor of the nation's law schools, but they need not impose such a restriction. California, notably, has not, permitting graduates of law schools not accredited by the ABA to take its bar exam. Indeed, it is each state's prerogative to craft a bar exam that tests the knowledge or skills it believes are necessary to successfully practice law within it’s jurisdiction.

In an odd departure from the prevailing view, Dean Parrish also argues that the bar exam is too esoteric and insufficiently practical. This would come as a surprise to the majority of law school faculty, who often resist "teaching to the exam" because they see it as overly oriented toward practice and not sufficiently focused on legal theory. The bar exam does test much practical, black-letter law, and with the addition of the Multistate Performance Test also evaluates a graduate's ability "to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish."

Dean Parrish also claims that bar exams are merely devices to limit entry into the profession. Bar exams have many flaws, but to assert that they merely are intended to protect established lawyers from competition requires much more evidence than Dean Parrish has provided. Here again, however, the purpose of the bar exam is immaterial. What matters is that passing it is necessary to practice law and law schools are obligated to ensure their students are prepared for the exam.

Dean Parrish is also inconsistent in assessing the nature of the bar exam. On the one hand, he criticizes it as just another standardized test that "simply tests the ability to take tests." If this were true, one would expect that graduates of elite schools who typically have higher LSAT scores would have little difficulty with the bar exam. As Dean Parrish observes, this is not always the case—particularly in California. This suggests that perhaps the bar exam is, in fact, about more than the ability to excel on standardized tests.

Dean Parrish concludes with two assertions. First, he claims the new bar passage standard is not really about ensuring legal competency but about affecting law schools' admissions criteria. If the ABA wanted to change admissions criteria, however, it could do so directly and much more effectively by simply requiring a minimum LSAT score for all matriculants. Instead, it has left that decision to law schools, stipulating in Standard 501 only that a school may not admit students who do not appear capable of satisfactorily completing its program of legal education and being admitted to the bar. Having been given the latitude to determine the credentials of the students they admit, law schools bear the responsibility of seeing that those students can pass the bar.

Dean Parrish also asserts that if law schools are held to a higher bar passage standard, they will admit fewer students of color with lower LSAT scores. There are two problems with this argument. First, such a response is at odds with Standard 206, which requires law schools to demonstrate by concrete action a commitment to having a student body that is diverse with respect to gender, race, and ethnicity. Worse, the argument suggests that the only students admitted with lower LSAT scores are students of color. The shameful truth is that in the face of a nationwide applications slump, many law schools have admitted students with ever-lower LSAT scores—of all races and ethnicities—to prop up tuition revenue. They now seek to avoid accountability for the resulting poor bar passage results.

The ABA is correct in expecting law schools to do right by the students they admit and adequately prepare them to pass the bar exam and engage in the profession for which they are pursuing a legal education.