TaxProf Blog op-ed: California Supreme Court Fails Bar Examinees, by Mitchel L. Winick (President & Dean, Monterey College of Law):
It is July, and that means another bar exam is looming large for recent law school graduates. In California, it also brings our attention back to the ongoing effort to have the California Supreme Court adjust the bar exam minimum passing score from the arbitrary and unvalidated 1440 cut score that is currently in place to the national mean score of 1350. As Dean of Monterey College of Law, a California accredited law school, I understand that there are those who shrug off this issue as mere whining of California law school deans about low pass rates. However, I would like to offer some facts that better frame the importance of this issue to the profession.
First let me say that recently released bar data provides the best response for the second most common question that I get . . . "why am I arguing for dumbing down the bar exam?" I'll let the data speak for itself . . .
February 2019 - MBE Scores – First time takers
1340 National mean score
1371 California mean score
1374 Monterey College of Law mean score
The results . . . California examinees outscored the nation . . . and our Monterey College of Law examinees outscored California.
Despite these high-performance scoring results, because California uses an artificially inflated minimum passing score of 1440, the California first-time pass rate in February 2019 was 41% and the MCL first-time pass rate was 40% (the 1% statistical difference is due to MCL’s small cohort). In comparison, based on a national mean passing score of 1350, the national first-time passing rate was over 60%.
What is frequently overlooked in news headlines and articles is that California and MCL examinees do not have a 20% lower bar pass rate because they performed poorly. As the results indicate, California examinees outperform national examinees by more than 30 points. The pass rates are 20% lower because the California minimum passing score is artificially set 110 points higher than New York and 80-90 points higher than the other top five jurisdictions. According to the bar’s data, requiring a minimum passing score of 1440 means that a California examinee must score in the top 26% in the nation in order to get licensed in California. Comparatively, the national mean passing score of 1350 requires scoring better than 50% of all examinees.
Under what legal or public policy rationale can anyone argue that requiring a minimum passing score in the top 26% of all examinees is a fair measure of “the minimum competency for the first-year practice of law,” the legal standard that is supposed to be used for scoring the bar exam.
The "human cost" of this cut score disparity is reflected in recently released California bar exam statistics. From 2011-2018 more than 7,400 competent law school graduates who scored above the national standard of 1350 — almost 1,000 per year — were denied licensure in California solely because of the arbitrary use of 1440 as the California cut score.
Finally, let me address the first most common response that I get from currently licensed California lawyers and judges . . . "I passed at 1440, so why shouldn't everyone else have to as well?"
I'll again let the data speak for itself . . .
The California bar is 85% white, 65% male with an average age of 51. The diversity of the bar has changed very little over the past 20 years. It does not reflect the communities that we serve as officers of the court or the demographic and socioeconomic richness of California. The majority of California bar examinees are now minorities (52% in February 2019), so the problem is not in the diversity of successful law school graduates. The problem is that using a standardized test along with an unvalidated artificially high passing score has a disparate impact on minorities . . . as indicated by the State Bar’s own statistics. It perpetuates the same type of barriers to entry into the legal profession that have been repeatedly struck down as unconstitutional in most other licensed professions.
The California Constitution prohibits the use of a pre-employment state licensing exam that has a disparate impact on the basis of race, gender, or age. Recently released State Bar statistics reflect that by using the national standard of 1350, the number of successful white examinees since 2011 would have increased by 12.6%, but the number of successful minority examinees would have increased by 20.0%. If the diversity of the bench and bar is a priority, why are we not challenging the continued use of an unvalidated scoring system that systematically bars competent minority candidates from licensure?
At the end of this month another cohort of successful law school graduates will sit for the California bar exam. Before we unjustly deny licensure to another 1,000 qualified law school graduates, the California Supreme Court should take the necessary steps to adjust the minimum passing score for the California bar exam from 1440 to the national mean passing score of 1350.