TaxProf Blog op-ed: Highest Performers but Lowest Pass Rate, There is Something Seriously Wrong in California, by Mitch Winick (President & Dean, Monterey College of Law) (This op-ed is reprinted with permission from the Contra Costa County Bar Association (CCCBA). It was originally published in the February 2020 Contra Costa Lawyer magazine, a publication of the CCCBA. You can view the original online here):
Great news! California bar examinees were once again among the highest performers in the nation on the July 2019 bar exam. According to last month’s released results, California examinees scored 17 points higher on the Multistate Bar Examination than the national mean (1428 v. 1411 scaled points). In MBE terms, this is a very significant difference and also predicts that these examinees performed better on their state-topic essays and performance tests because these scores commonly correlate. These exam results unquestionably reflect the high quality of legal education and preparation of California bar examinees.
But something is seriously wrong! Only 50.1% of these high performing examinees passed the California bar exam. Meanwhile, lower scoring examinees passed at a 20% higher pass rate in many other major jurisdictions. This dramatic difference results from California using an artificially high minimum passing score (“cut score”) when compared with every other major jurisdiction. To put this in context, California’s cut score of 1440 is significantly higher than the national mean of 1350. Furthermore, every other U.S. jurisdiction except Delaware has adopted cut scores between 1290 and 1390. The five most comparable large jurisdictions, including New York, use passing scores of 1330 to 1360. Only California sits as an outlier using 1440.
Why the difference in scores? Each jurisdiction has the authority to set a passing score that is intended to define “the minimum competency for the first-year practice of law” in their state. A common argument heard in California is that its high cut score ensures higher quality lawyers. However, the problem with this argument is that there is no evidence that bar exam scores have any relationship to lawyering skills. Furthermore, no evidence exists that states with lower cut scores have less competent lawyers or have higher incidents of malpractice or ethical violations. In fact, despite its artificially high cut score, California has one of the highest incident rates of lawyer discipline in the country. Therefore, the only measurable result of using an artificially high cut score in California is the conversion of some of the highest performing scores in the nation into the lowest passing rate.
How did this come to pass? The best evidence suggests that a passing score comparable to 1440 was established sometime between 1950 and 1955 by bar leaders of that era. Keep in mind that law students and bar examinees of the 1950’s were almost exclusively white males. In fact, Harvard law school did not admit women until 1950. However, since that time, the demographics of law students and bar examinees have changed significantly. In 2016, the majority of students enrolled in ABA law schools were women and in 2018 the majority of examinees sitting for the July California bar exam were non-white. This raises the question of whether the continued use of a standardized licensing exam with an artificially high passing score effectively and fairly measures minimum competence across all categories of examinees.
State Bar statistics from the July 2018 bar exam indicate that if the national standard of 1350 had been applied in California, the passing rate of white examinees would have increased by approximately 43%. However, the passing rate of blacks would have increased by 125%, Hispanics by 68%, and Asians by 64%. This significant statistical differential by race/ethnicity for a mandatory state-sponsored licensing exam raises serious questions about the validity and fairness of the exam scoring. If diversity of the bench and bar is a priority, as it should be, we should all be questioning why California is using a scoring system that disproportionately bars competent minority candidates from the profession.
Why does all of this this matter? Fairness, inclusion, diversity, protection of the public, and access to justice should be important to all of us. From 2011 through the most recent July 2019 bar exam, an estimated 8,000 competent law school graduates who scored above the national mean standard of 1350 – approximately 1,000 per year – were denied licensure in California. These law school graduates earned the grades in law school and on the bar exam that reflect a level of competency that qualifies them for licensure in 48 other jurisdictions.
These are potential California lawyers who are unavailable to address the growing justice gap in California, to serve our communities in public defender and district attorney offices, or to contribute to the growing California economy in public and private law practices. These are intelligent young professionals who have risked hundreds of thousands of dollars in student loan debt, dedicated thousands of hours to the study of law, and forgone years of family and personal opportunities in order to become lawyers and serve our communities. These are potential lawyers who lost job and career opportunities despite being among the best and brightest bar examinees in the country.
So, what can be done? The California Supreme Court has the sole authority to adjust the cut score. Recently, four Supreme Court Justices met with law school deans representing the three categories of California law schools – ABA approved, California Accredited, and California Registered. As part of this informal dialog, the Court welcomed additional conversation and information-sharing related to establishing a cut score that meets California’s future professional needs. We should support the Court as it considers the future of the bar exam.
This is the opportunity for each of us to encourage these conversations among our legal colleagues. Otherwise, we risk a future where many of our best and brightest lawyers, perhaps our own children, will go elsewhere to study and practice law – to find a place where the standards of entry into the profession are fairer and more equitable. We risk having a profession that does not reflect the rich diversity of our state or address the broadening justice gap in our communities. Know that these are not hypothetical risks . . . recent reports indicate that these trends are already beginning.
California bar examinees are among the highest performers in the nation. A change is necessary to welcome more of these future lawyers into our profession.