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

Following up on my previous posts:

• ABA To Again Consider 75% Within 2 Years Bar Passage Accreditation Standard Opposed By Diversity Advocates, Some California Law Schools
• 90% Of Law Students Pass The Bar Within 2 Years Of Graduation, But 10% Of Law Schools Have Fail Rates > 25%

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.