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

Sunday, January 27, 2019

Should The ABA Tighten Bar Passage Standards For Law Schools?

ABA Logo (2016)Following up on my recent posts (links below):  ABA Journal, Should the ABA Change Bar Passage Standards for Law Schools?:

In the days before the ABA House of Delegates revisits a proposed standard revision to tighten bar passage requirements for accredited law schools, some say an in-depth diversity study should precede any changes made.

Language for the proposed revision to Standard 316—which calls for a bar passage rate of at least 75 percent within two years—is unchanged from what was submitted to the House of Delegates at the 2017 February midyear meeting. The body rejected the proposal, which is listed as Resolution 105 for the 2019 ABA Midyear Meeting. Under ABA rules, the House of Delegates can send a proposed standard revision back to the council twice for review with or without recommendations. But the council of the Section of Legal Education and Admissions to the Bar, which submitted the proposed revision, has the final decision on matters related to law school accreditation.

No accredited law school has ever been out of compliance with the current version of Standard 316, and there are various ways to meet its current requirements. One is that at least 75 percent of graduates from the five most recent calendar years have passed a bar exam, or there’s a 75 percent pass rate for at least three of those five years.

Also, a school can be in compliance if just 70 percent of its graduates pass the bar at a rate within 15 percentage points of the average first-time bar pass rate for ABA-approved law school graduates in the same jurisdiction for three out the five most recently completed calendar years.

In 2018, the council released a memo addressing diversity concerns about the proposed revision, as well as what it would mean for law schools in California, where the cut score of 144 is the nation’s second highest. The memo mentioned a voluntary survey, which had responses from 92 law schools.

“The memo in support of the resolution in the House materials makes clear that the council concluded that it had sufficient data to support the revised standard that is before the House. The action was taken after considerable process and study by a distinguished group of council members, whose service and judgment merit respect,” said Barry Currier, the ABA’s managing director of accreditation and legal education, in a statement. “The revisions to Standard 316 are driven by the council’s objective of serving the interests of students and the public. Certainly, the council is not asking too much of a law school that charges significant tuition to require it to demonstrate that its program leads to success on a required licensing exam by at least three-fourths of its graduates who sit for that exam within two years of graduation.”

Within the ABA, chairs of the Goal III entities, which work to eliminate bias and enhance diversity, sent a letter to Jeffrey E. Lewis, who chairs the council of the Section of Legal Education and Admissions to the Bar. The Jan. 11 letter asks that before the revision goes forward, more be done regarding what the change would mean for diversity in the profession. Requests for a more thorough study also were made in 2013 and 2017, according to the letter, which mentions the council’s November 2018 memo. ...

Besides the Goal III chairs, criticism about the proposed resolution has come from the Society of American Law Teachers in a Jan. 21 letter and Western Michigan University’s Thomas M. Cooley Law School, where a committee wrote a paper opposing the proposal. ...

Alternatively, others support the proposal, including Daniel B. Rodriguez, a professor and the former law school dean at Northwestern University’s Pritzker School of Law in Chicago. The school’s 2015 ultimate bar passage rate was 94.93 percent. “There are, to be sure, a number of important concerns raised by various groups, especially those principally involved with diversity in law schools. These concerns make the issue more difficult than it would be otherwise,” Rodriguez says in an email to the ABA Journal, adding that he hopes there will be growing attention to “the efficacy of the bar exam as a test of competency and, as well, the serious matter of disparate cut scores. It is only by solving all three of those issues that we can really get to the heart of these access and accountability issues once and for all.”

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The ABA bar study of the “ultimate bar passage within two years of graduation for graduates of 2013, 2014, and 2015” is no longer an accurate predictor of whether law schools can meet the proposed new 75% in 2 years bar passage standard. Since that data was cumulated the bar passage rates in many jurisdictions have dropped considerably. For instance, in California where many law schools face the prospect of failing the proposed new standard the July bar passage rates for first-time CA ABA schools were: 2015: 68.2%; 2016: 62.4%; 2017: 69.7%; and 2018: 63.8%. Further, on the July 2018 CA bar exam fifteen (15) CA ABA law schools had first-time bar passage rates below 75%. In addition, 12 CA ABA schools had pass rates at 60% or lower. If the July 2018 CA ABA law schools’ passage rates are factored into the ABA’s predictive index for schools’ probability of meeting the 75% passage rate in 2 years, that prediction is much bleaker. In addition, those 12 CA ABA law schools that scored at 60% or lower on the July 2018 exam enroll more than 60% of diversity candidates in California ABA law schools. The ABA’s prediction that the new standard will not significantly impact diversity in admissions is inconsistent with that empirical data.

Posted by: William Patton | Jan 27, 2019 1:13:42 PM

The ABA (hundreds-of-dollars-per-year optional lawyers' club, that sometimes invites government to schmooze at events for free) may be particularly good at checking whether a school has good courses. Whether it has duly nuanced libraries and journals. And maybe even if it's good at considering different reasons to fudge admissions decisions for a law-student body (if you're into that kind of thing).

But how would the ABA have special knowledge of whether it's worth a little more risk of not passing the bar (and maybe being a great paralegal), to try studying the law and being allowed to take the bar at all? Or to save a few thousand bucks a year in tuition, and try to educate more students and supply more affordable lawyers for citizens and businesses, at the risk a few won't quite make it? It obviously has a powerful self-interest toward over-caution.

Even before someone incants "diversity" -- not that there aren't many diverse individuals needing both career growth and affordable representation -- the states and the people (and whoever lends to and guarantees them) should tell insiders to butt out of this consumer-protection versus opportunity judgment.

Posted by: Anand Desai | Jan 27, 2019 8:32:26 PM

The California bar passage rate is a separate issue. The steep drop in the California bar pass rate is not due to the cutoff. The cutoff hasn't changed in many years. It is due to the fact that many California law schools have lowered their admissions requirements, especially for the LSAT. You can follow how the incoming LSATs and GPAs have dropped on the Law School Transparency website. It is shocking how far down in the applicant pool that some law schools have gone to fill their classes. For example, in 2010, the 25th percentile LSAT for Whittier was 150; in 2013, it was 143. LST considers an entering 143 as providing an extreme risk of bar failure. Between 2008 and 2016, Whittier's bar passage rate went from 82.6% to 22.6%. The California cutoff score didn't change during these periods.

Other California schools with low pass rates paint similar pictures of admitting students who have little chance of passing the bar.

While admitting students with lower indicators, most of these schools have done nothing to compensate for the much weaker incoming classes. There is a mountain of books and articles on how to improve the delivery of legal education, but these law schools have taken no step to implement them, even though their students desperately need better approaches. If you admit weaker students, you must make a strong effort to help them succeed. Otherwise, you are exploiting them. Many graduates of these schools graduate with crushing debt.

In sum, the California bar pass issue is irrelevant to the new ABA proposal. As I have said before, law schools should do their part, or lose accreditation.

Posted by: Scott Fruehwald | Jan 27, 2019 9:01:50 PM


Your comment makes no sense. This decision is about whether the ABA should give it's official stamp of approval on the law school; not whether the law school can exist at all. If you want the ABA to butt out of bar passage standards, then the government can butt out of student lending as well.

Posted by: JM | Jan 28, 2019 4:28:33 AM

Dear Mr. Fruehwald. In two of your recent comments you make many assertions without presenting any evidence. First, you stated that “It does nothing to help disadvantaged communities for law schools to graduate students who will hurt those communities more than help them.” What proof do you have that pro se clients are better off representing themselves than having attorneys who eventually pass a bar exam provide them with representation? Please provide empirical data, not anecdotes. Second, you assert that the lower CA bar passage rate “is due to the fact that many California law schools have lowered their admissions requirements, especially for the LSAT.” Please provide your data. Have you even read the latest CA State Bar study that found that lower entering student credentials may only be 20-50% responsible for the reduction in CA bar passage rates? Finally, you state that the “California bar pass issue is irrelevant to the new ABA proposal.” Let’s role play. You are a dean at an ABA law school in Missouri (130 MBE cut score), and I am a dean at a California law school (144 MBE cut score). You are considering admitting several students with LSAT’s in Frakt’s “high risk LSAT range of 147-149.” You consider Missouri’s 130 cut score and its July 2018 82.4% first-time bar passage rate. Since those admitted students have an excellent chance to pass the Missouri bar on the first or second attempt, I assume that your admissions decision would not be greatly influenced by the proposed ABA bar passage rule. However, my decision would be quite different because of the combination of California’s 144 cut score and its 63.8% first-time bar passage rate. Admitting those students might place my school at risk of not meeting the new ABA standard. Therefore, unlike you, I find the proposed ABA standard very relevant to the CA bar passage rate. In addition, the ABA standard is relevant in another context. Those 147-149 LSAT students will be licensed to practice in Missouri and will provide those in that state with legal services. However, those similarly situated students will simply not exist as member of the bar in California, in large part, because of the ABA bar passage standard, not because of differences between the two groups of students' abilities to provide competent representation.

Posted by: William Patton | Jan 28, 2019 2:35:34 PM

The ABA HOD has just rejected the proposal. It now goes back to the Council. I think the Council will enact the proposal despite the fact that the DOD rejected it twice.

Posted by: Scott Fruehwald | Jan 28, 2019 2:41:30 PM