Welcome back to Ahead of the Curve. I'm Karen Sloan, legal education editor at Law.com, and I'll be your host for this weekly look at innovation and notable developments in legal education.

This week, I'm weighing in on a letter the Society of American Law Teachers sent to the ABA last week, asking it to suspend the 75% bar pass standard amid the COVID-19 pandemic. I'm breaking down some pros and cons to that approach. Plus, I've got some updates on the bar exam, from California's dismal February results to Florida's decision to push forward with the July test, and Indiana paring the exam down to one day. Read on and stay safe!

Please share your thoughts and feedback with me at [email protected] or on Twitter: @KarenSloanNLJ

Debating the Bar Pass Standard Amid a Pandemic

Should law schools be evaluated based on their bar pass rates during a pandemic for accreditation purposes?

It's an interesting question raised by the Society of American Law Teachers, which last week wrote to the American Bar Association's Council of the Section of Legal Education and Admission to the Bar asking it to suspend Standard 316 because of COVID-19. As a refresher, that's the much-debated rule that requires 75% of a law school's graduates to pass the bar exam within two years of leaving campus. Law schools missing that mark risk losing their accreditation.

There has been such an epic scramble to figure out what to do about the July bar exam and attorney licensure that I'll admit I haven't thought much about the weight the ABA places on bar exam results to evaluate the quality of a school's educational program. It must be said that the bar exam isn't the only thing the ABA looks at when determining whether a school is making the grade, but it's the most objective and uniform measure it has at the moment. But is the bar exam still an objective measure of quality when the test itself has been thrown into disarray? SALT doesn't think so.

"In this climate, overall bar passage rates will bear no relation to the quality of the graduates or their respective law schools," reads SALT's letter to the ABA. "The rates will reflect the impact that COVID-19 disruptions had on the bar takers personally."

SALT's reasoning for temporarily ditching Standard 316 has several prongs. First, jurisdictions are all over the map with their exam plans, and we still don't know what will actually come to fruition. Some jurisdictions plan to give the usual exam in July, with some requirements for safety such as wearing masks and taking temperatures. Others have postponed until September, possibly with online exams. And some jurisdictions, including New York, have warned that they likely won't have enough capacity to test everyone who wants to sit for the bar.

And a handful of jurisdictions have gotten pretty creative. Utah has adopted an emergency diploma privilege that enables recent law graduates to skip the bar exam and become licensed in the state after completing 360 hours of supervised legal work. Indiana last week unveiled plans for a one-day, online July bar exam that will be created by the state's board of law examiners.

Given that lack of uniformity, SALT wonders how bar exam pass rates can be evaluated side-by-side. Which seems like a fair question. Take Utah, for example. Presumably the ABA will have very few bar exam results to evaluate for the state's two law schools in 2020. (I should note that there is precedent here, given that Wisconsin has long maintained a diploma privilege for graduates of the two law schools there. But if diploma privileges spread in response to COVID-19, I would think it makes Standard 316 untenable.)

And then there are the students, who are also facing different pressures based on their personal circumstances and geography. Here's SALT again:

"Inevitably every law school will have graduates adversely impacted by the pandemic which, based on no individual fault, endangers their bar passage. Law graduates will have faced unprecedented challenges in the months leading up to the exam, whether the impacts be medical, financial, or otherwise."

Schools in areas hardest hit by COVID-19, such as New York and Illinois, will likely see their students face the biggest bar exam challenges and thus lower pass rates. Data show that the coronavirus is disproportionately impacting black and Latino people, and schools with higher minority enrollment are at greater risk of missing the bar pass threshold, according to SALT.

I find SALT pretty persuasive in its argument that the bar exam won't be a standard measure of how law schools have performed in educating this year's graduating class. But here's what gives me pause about the proposal to ditch Standard 316 right now: Law schools, for the most part, have already moved away from grades and adopted pass/fail schemes for the spring. That, coupled with the swift move to online classes, will make it difficult to gauge how much students really learned this semester. So if the ABA suspended enforcement of the 75% bar pass standard, it would essentially be giving schools a pass for 2020 with virtually no way to ensure students received a quality legal education. As controversial as Standard 316 is, I think it functions as a protection for students to make sure they get what they pay for and can succeed. They still need to be able to pass the bar to have successful legal careers. (Well, not in Utah, but you get the idea.) In that respect, it's useful to keep the pressure on law schools to do everything they can to help students overcome all the hurdles COVID-19 is throwing their way.

I don't know the right approach here, but I think this is a matter that deserves serious discussion by the ABA Council. It's slated to discuss it when it meets (virtually) at the end of this week.

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Extra Credit Reading

The pass rate for the February bar exam in California hit an all-time low, at just 26.8%.

The National Conference of Bar Examiners will provide a July exam to jurisdictions that want to administer the test on the original timeline.

Florida plans to administer the bar exam in July, requiring face masks and temperature checks.

Indiana will shrink the July bar exam down to one day and deliver it online.

Many law schools are holding virtual commencement ceremonies this year.

David Faigman, dean of the University of California Hastings College of the Law, discusses the school's decision to sue the City of San Francisco over homeless encampments around its campus.

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I'll be back next week with more news and updates on the future of legal education. Until then, keep in touch at [email protected]