Photo: Diego Radzinschi

It seems the years-long debate over a controversial proposal to toughen the American Bar Association's bar pass standard for law schools will drag on for several more months.

The ABA's council of the section of legal education and admission to the Bar on Friday failed to reach a decision on the proposal, instead opting to take up the matter again at a future meeting. The organization's larger House of Delegates has already rejected the heightened bar pass standard twice since 2017, but ABA rules now allow the council to enact the measure without that body's approval. The 21-member council next meets in May in Chicago.

“The council appreciates and respects the concerns expressed related to these revisions over the past several years, including recently by the ABA House of Delegates,” said Barry Currier, the ABA's managing director of accreditation and legal education, after the bar passage discussion ended.

The debate over the bar pass standard dates back to at least 2013, when the ABA began discussing changes. Supporters of the proposal argue that a stronger rule is necessary to ensure schools are admitting qualified students and preparing them for successful legal careers. Opponents have countered that the proposed changes would disproportionately hurt law schools with large minority enrollments, thus hobbling efforts to increase diversity in the legal profession.

Under the proposed standard, at least 75 percent of a law school's graduates would have to pass the bar within two years of leaving campus lest it risk losing accreditation. Schools currently have five years to meet the 75-percent threshold. The proposal would also eliminate the existing provision that allows schools to meet the standard if their first-time bar pass rate is within 15 percent of the average in their jurisdiction. It would also require schools to report bar pass data on all graduates, as opposed to the current 70-percent minimum.

Advocates of the tougher standard say the existing rules are too lax and riddled with loopholes, and they point to the fact that no school has yet to fall short of the current bar pass standard.

The bar pass proposal has a long and winding history. The ABA's Standards Review Committee—which has since been dissolved with its work absorbed by the larger council—began discussing a new rule in 2013. Diversity advocates have opposed the measure for the past six years. The ABA's House of Delegates initially rejected the proposal in 2017, and again last month.

Alongside the diversity concerns, critics of the proposal say that holding all schools to the same pass rate threshold is unfair given that bar exam cut scores and pass rate vary across jurisdictions. Additionally, they argue that it's not the right time to heighten the bar pass rule because pass rates have been falling steadily in recent years without a clear explanation as to why.

But others, including the National Conference of Bar Examiners, have said a heightened bar pass standards would protect the consumer interests of law students by helping ensure they receive a quality legal education.

According to data collected by the ABA, 19 of the 202 accredited law schools would not have met the proposed new bar pass standard for the class of 2015, meaning that fewer than 75 percent of those graduates passed the licensing exam within two years. (Three of those schools are slated to close.) Based on that analysis, the ABA concluded that the rule would not disproportionately hurt schools with high minority enrollment. Many diversity advocates remain unconvinced.

“The council is pleased that the data it has recently collected and evaluated show both that graduates of ABA-approved law schools, in the aggregate, are succeeding on the bar examination at a high rate, approaching 90 percent, in the two years following their graduation; and that ABA-approved law schools are overwhelmingly performing above what the revised standard would require,” Currier said.