While courts, bar examiners and legal educators are grappling with how to handle the July bar exam amid COVID-19, there's also cause for concern over the now-concluded February exam.

The national average score on the Multistate Bar Exam—the 200-question multiple-choice portion of the attorney licensing test—fell 1.4 points from the previous year to land at 132.6, according to the National Conference of Bar Examiners, which develops the test. That represents the lowest average February MBE score on record, and is an ominous sign for pass rates in individual jurisdictions.

Judith A. Gundersen, president and CEO of the National Conference of Bar Examiners (Courtesy photo.)

"It's obviously disappointing to see this decline after last year's mean increases in February and July," said national conference president Judith Gundersen on Monday. "Although the MBE isn't the only factor that affects bar passage rates, we will probably see a decline in pass rates for February 2020."

The February results are likely to throw cold water on the legal academy's hopes for a sustained bar exam turnaround. Pass rates plummeted between 2014 and 2018, but a 1.2-point gain on the February 2019 average MBE score fueled cautious optimism among educators that the worst was behind them. Those hopes accelerated after July 2019 bar takers posted a 1.6 point increase in the MBE average. The July administration is watched more closely by the legal industry, as it is significantly larger and draws a higher percentage of first-time takers that the February test.

This past February, 19,112 people sat for the exam—down 10% from the previous year. And more than two-thirds of them were taking the test for a second time or more, according to the national conference. It was those repeat test-takers who were the primary drivers of the declining average MBE score, Gundersen noted, rather than those who were sitting for the exam for the first time.

"The February mean is always driven by repeat test-takers; this February, the decrease in the mean score among likely first-time takers was relatively small, while the decrease was larger for likely repeaters," she said.

The growing adoption of the Uniform Bar Exam is a possible factor in lower pass rates because the ability to transfer scores across jurisdictions eliminates the need for attorneys who have already passed one bar exam to take it again elsewhere. Those who have passed the exam once are far more likely to pass it in subsequent administrations than are those who have already failed and are trying again. Another way to think about it is that bar failers are representing a higher proportion of examinees than in the past, before widespread adoption of the uniform exam.

It's not all bad news out there on the bar exam front, however. Jurisdictions are starting to release results from the February test. The overall pass rate in Florida, for example, increased from 58% in 2019 to 60% this February. Tennessee's February pass rate held steady at 46%. But Virginia's February 2020 pass rate fell to 58%, down from nearly 63% the previous year.