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

Saturday, January 26, 2019

Eighteen Law Schools Would Fail ABA's Proposed 75% Bar Passage Within 2 Years Accreditation Standard

Following up on my previous posts:

USA Today, Law Schools Where Too Many Graduates Fail the Bar Exam May Face Tougher Sanctions:

Arizona Summit Law School in Phoenix [is] one of 18 U.S. law schools where at least a quarter of graduates who took the bar exam didn't pass within two years, according to a yearlong USA TODAY Network investigation into the schools.

The analysis of data from the American Bar Association shows that the law schools include large state universities, private for-profits and independent colleges enrolling, in all, about 8,000 students, or 7% of U.S. law school students.

Experts said the numbers represent a significant failure to meet the expectations of law school students, who graduate after spending three years in school with debt averaging more than $115,000.

"If you are offering people a program that is designed to lead to admission to the bar, then there should be a reasonable expectation of achieving the goal," said Deborah Jones Merritt, a law professor at Ohio State University Moritz College of Law. ...

On Monday, a policymaking body for the ABA will weigh a controversial proposal that would toughen the bar-pass standard for law schools. The proposal is likely to be vigorously debated and comes after criticism that the accrediting body has allowed schools to admit too many lower-achieving students who struggle to pass the bar.

Here's what could change: Law schools have five years to show 75% of their graduates who take the bar exam have passed. The proposal would narrow that to two years.

Supporters of the change say the five-year time frame has allowed schools with dismal bar-passage rates to continue operating. Critics worry struggling schools will respond by requiring higher scores on the law school entrance exam. This will hurt diversity in law schools and the legal profession, they say, because minority and economically disadvantaged students historically have scored lower on the Law School Admissions Test.

Kyle McEntee, executive director of Law School Transparency, a nonprofit group that tracks data related to law schools, said the ABA's bar-passage requirement, known in legal circles as Standard 316, is full of loopholes and doesn't hold schools accountable. No school has ever been found out of compliance by the ABA, including when several schools posted bar-pass rates below 50% in consecutive years. “It’s virtually impossible to fail," McEntee said, "although some schools are managing to come close."

In 2018, the ABA lifted the curtain on the performance of its roughly 200 accredited schools, publishing for the first time the bar-pass rates for their 2015 classes during the two years after graduation. ...

Jeffrey Martlew, Cooley’s interim president, ... opposes the ABA's proposed bar-pass standard. He called it a "radical departure" that, if adopted at all, should be phased in, so schools can adjust. More importantly, he said, the standard would force law schools to turn away lower-profile students, among them many minority students, a move that would probably make the nation's law schools less diverse. ...

Others share Martlew's concern about the proposed requirement's impact on law school diversity. ...

ABA officials said there is no evidence that law schools would use a bar-pass standard as a basis for decreasing diversity; the ABA requires schools to commit to diversity, the organization said.

of Law School Transparency doesn’t put much weight on the argument that the change would shut down law schools that enroll large numbers of minorities. If a school has low bar-pass rates, it's doing more harm than good, he said. "People who don’t get through school and don't pass the bar exam are not diversifying our profession," he said. ...

Some schools have used more selective admissions to raise bar scores. At the University of South Dakota School of Law, the state's only law school, bar-pass rates began falling in 2014. By 2017, 46% of first-time takers were passing. The drop coincided with a decision to admit students with lower LSAT scores and grade-point averages, as the school tried to maintain enrollment amid declining applications. ...

Many of the nation's least selective law schools used a similar strategy to fill their classes after 2010 as law firms downsized during the Great Recession and law school enrollment plummeted.

The number of law schools admitting at least 25% of students considered "at risk" of failing the bar jumped from 30 schools to 74 schools from 2010 to 2014, according to a report in 2015 by Law School Transparency.

South Dakota lawmakers, alarmed by the sudden decline in graduates' bar scores, demanded more oversight. The Legislature found more funding, which the school used to reduce the size of the incoming class by 40% and to be more selective in admissions. The school began offering a bar-prep class.

In July, 82% of first-time test takers passed the state bar exam. ...

Several of the 18 law schools with pass rates below 75% for their 2015 graduates declined comment to the USA TODAY Network or did not return messages seeking comment: Golden Gate University School of Law in San Francisco; Puerto Rico's Inter American University; New England Law in Boston; Ohio Northern University Pettit College of Law; District of Columbia John A. Clarke School of Law; Syracuse University College of Law in New York; American University Washington College of Law in Washington; Indiana's Valparaiso University Law School; Atlanta's John Marshall Law School; and California's Whittier Law School. ...

ABA officials said a tougher standard would better protect students.

Law schools will be more conscious of whom they admit and whether those students have the talent and drive to enter the profession, said Barry Currier, the ABA’s managing director of accreditation and legal education.

Getting 75% of students to pass the bar exam within two years may be a problem for a few schools, Currier said. But the ABA Council says "it's a problem you have to overcome," he said. ...

The ABA Council began pushing its proposal to revise the bar exam standard in 2016. 

If adopted, schools that fail would have two years to turn around or risk having their ABA accreditation revoked.

The loss of accreditation would essentially be a death knell for a school because most states require students to graduate from an ABA-accredited law school in order to sit for the bar exam.

After an unsuccessful attempt to revise the standard in 2017, the proposal is back this year. 

Monday, the ABA Council will  ask the House of Delegates to weigh in again during the ABA’s Midyear meeting in Las Vegas.  The proposed change is likely to be met with fierce opposition once again. If the delegates don't concur, the proposal will go back to the council, which has the final decision.

https://taxprof.typepad.com/taxprof_blog/2019/01/eighteen-law-schools-would-fail-abas-proposed-75-bar-passage-within-2-years-accreditation-standard.html

Legal Education | Permalink

Comments

For three law schools with quite similar to nigh-identical LSAT and GPA scores, New England Boston (149 / 3.3), Suffolk (150 / 3.3), and UMASS Dartmouth (148 / 3.11) have very different bar outcomes, at 69.2%, 84.4%, and 88.7%, respectively.

Of course a lot can hide below those median stats...

Posted by: Unemployed Northeastern | Jan 26, 2019 8:52:14 AM

Unemployed Northeastern, Bar passage percentage rates are directly tied to state cut scores more than to LSAT/GPA’s. As recent empirical studies have shown, CA ABA law schools with very low CA bar passage rates would have significantly higher bar passage rates in states with lower cut scores, and out-of-state ABA law schools with higher LSAT/GPA’s fail the CA bar exam at much higher rates than those who take their in-state exams. In fact, from 2007-2015 out-of-state ABA students who took the CA bar were outperformed by CA ABA students an average of between 10-15% during that time frame. Just look at the chart in the article. Compare an ABA CA school, such as Southwestern, with out-of-state ABA law schools that have much lower bar exam cut scores but which have similar LSAT/GPA’s: Southwestern (LSAT 152/GPA 3.24/Bar 82.9%); Memphis (152/3.3/91.5%); Missouri Kansas City (152/3.42/93.8%); Louisville (152/3.36/94.4%); Gonzaga (153/3.3/96.6%); Campbell (152/3.29/97.9%). The ABA proposal is absurd for several reasons: (1) bar passage as correlated with a state’s cut score has little correlation with a law school’s quality of instruction; (2) the rule does not account for situations in which law schools provide students in high cut score states with a “value added” education in which the students substantially outperform predictions of MBE performance based on their LSAT/GPA’s, but who fail the bar because of the high cut score; (3) a national accreditation body should promulgate standards that are national, not local (bar passage rates are artificially set by selecting particular cut scores in each state). As I demonstrated in a recent article, a better standard is to use law schools’ mean MBE scores rather than bar passage rates to determine whether a school’s program of instruction is sufficiently educating their students. The comparison of schools’ mean MBE scores is the only data in which we can currently judge the performance of all law students in all ABA schools on the same exam). The ABA proposal should be defeated, but the ABA has invested so many years in pushing this absurd standard that empirical data and public policy will likely not sway the debate.

Posted by: William Patton | Jan 26, 2019 1:56:08 PM

Paul,
Here is an excerpt I wrote about the proposal on the Legal Skills Prof Blog:

These are legitimate concerns. The question, however, is why many law schools did nothing to improve legal education to help minority students when bar exam scores started to decline several years ago. In 2007, Best Practices and The Carnegie Report demonstrated in great detail that law schools were not providing a quality education to their students. Since then many scholars have reiterated these concerns. For example, I wrote an article showing how law schools could help minorities do better in law school. How to Help Students from Disadvantaged Groups Succeed in Law School, 1 Texas A & M Law Review 83 (2013). Professor Louis Schulze put similar ideas into practice at FIU, and his school has scored highest on the Florida bar exam again, again, and again. (here)

All law schools must do their part to increase the diversity of the legal profession. However, they should not be able to do this by admitting unprepared students, then doing nothing to help them become effective attorneys. It does nothing for minorities if law schools graduate them without the tools to be competent attorneys. It does nothing to help disadvantaged communities for law schools to graduate students who will hurt those communities more than help them. The present situation is turning out attorneys who cannot earn enough money to pay off their crushing law school debt.

I urge the House of Delegates to enact the proposal. As I noted, many law schools have ignored the call for legal education reform for over ten years. We can't wait any longer. Do your part, or lose your accreditation.

Posted by: Scott Fruehwald | Jan 26, 2019 5:23:19 PM

We should support allowing anyone who chooses to take the bar do so. The real issue is the amount of debt people come away from law school with. California has one thing right: many different paths (types of schools or apprenticeship) but the toughest bar. Kids who make it out may not be able to pass the bar, but they are in debt maybe $20-30K assuming you have completed the 4 years. You would have gained a lot of knowledge along the way assuming you got through the first year baby bar (which has a 16% pass rate) which would have limited your tuition exposure to $4-$7K. A lot of people with a better understanding of the legal system is not a bad thing.

Posted by: Scott | Jan 27, 2019 9:09:32 AM

I second Mr. Fruehwald. There is nothing inherently controversial about the proposal... unless your pay check comes from one of the under-performing institutions (which might be the underlying motivation of some of the loudest critics).

Posted by: Anon | Jan 27, 2019 10:45:52 AM

"Unemployed Northeastern, Bar passage percentage rates are directly tied to state cut scores more than to LSAT/GPA’s."

Yes, that's why I highlighted three schools in the same state whose grads overwhelmingly take that state's bar...

Posted by: Unemployed Northeastern | Jan 27, 2019 3:40:49 PM

Some of the lowest-ranked schools on that list might be doing a GREAT job turning 60% / 80% = 75% as much of a student body *whom the others mostly wouldn't give a chance based on LSAT and GPA* into lawyers - while substantially improving the others' long-term prospects as well, Yakowitz's " The Marooned Law School Graduates: An Empirical Investigation of Law School Graduates that Fail the Bar Exam" (SSRN) suggests. If the tuition is not too high, isn't that a good deal all around?

We don't defund English departments for turning out far fewer Bards than baristas and we certainly don't shut their grads out of less-prestigious but often useful writing of blog platform instructions and such.

And we do have representative governments that can just say no to ham-handed elitism in professional regulation.

Let's have bar-passage and earnings disclosures, and consider nondischargeable-loan and guarantee limits -- NOT cartels, blocked career paths, and crocodile tears for life challenges and "diversity."

Posted by: Anand Desai | Jan 27, 2019 7:50:53 PM

Derek Muller makes the key point: without the sketchy for profit schools (enabled by Bill Clinton's Justice Department) this problem goes away. URL: http://excessofdemocracy.com/blog/2019/1/law-school-ruin-porn-hits-usa-today

Posted by: Anon | Jan 28, 2019 10:55:10 AM