Paul L. Caron

Thursday, May 30, 2019

Mnookin, Ferruolo & Faigman: California Needs A Task Force To Study The Bar Exam

California Bar ExamThe Recorder op-ed:  California Needs a Task Force to Study the Bar Exam, and Needs It Now, by Jennifer L. Mnookin (Dean, UCLA), Stephen C. Ferruolo (Dean, San Diego) & David L. Faigman (Dean, UC-Hastings):

Earlier this month, those who sat for the February bar exam in California received their results, and they weren’t pretty. Only 31% passed. For first-time takers who were graduates of ABA-accredited law schools in California, the pass rate was 45%. California (which, together with New York, has more bar applicants than any other state) has the second-highest cut score in the nation, after tiny Delaware.

Though California bar takers, on average, perform better than their counterparts elsewhere on the multistate bar exam (MBE), a far greater number fail as a direct consequence of California’s exceptionally high cut score.

The February bar results were in no way aberrational. The passage rate on the July 2018 bar exam was just 40%, with only 54% of first-time takers passing, an historic low and even worse than the previous historic low of 56% in July 2016. On those July exams, more than one-third of first-time takers from California law schools accredited under ABA standards failed. In New York, by contrast, 83% of students from ABA-accredited schools passed the July exam in both those years.

California Supreme Court Chief Justice Tani Cantil-Sakauye recently called these distressingly high failure rates “frightening.” Yet while there is a near consensus that these dismal results are problematic, there is little agreement about what can or should be done about them.

The best path forward is for the California Supreme Court to appoint—as soon as is practicable—an independent, blue-ribbon task force to study the cut score issue and make its recommendations within six or nine months. Such a task force should bring together leaders from the bench, bar and law schools to assess the cut score and licensure issues expeditiously, thoughtfully and holistically. ...

On the very same day that the California February bar exam results were released, the American Bar Association (ABA) passed a new law school accreditation rule, under consideration for several years, requiring at least 75% of a law school’s graduates to pass the bar within two years of graduation. While this new standard will pose a challenge to some law schools across the country, the greatest impact will be here in California, not because our law schools’ graduates are less qualified, but simply because of our exceptionally high cut score. ...

California rightly prides itself as a national leader in so many domains. We proudly celebrate our commitment to diversity, inclusion and guarantees of fundamental fairness, as well as our state’s embrace of innovation and creativity. And yet the state bar exam has not meaningfully changed since the days of the Sony Walkman and the VCR. We may not yet have consensus about the best solution going forward, but the current exam’s dismal pass rates and the elevated cut score’s disparate impacts on minority candidates should deeply concern us all. The time has come to establish a task force to address this pressing issue.

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