ABA's Tougher Bar Pass Rule for Law Schools Applauded, Derided
The American Bar Association's new standard could increase pressure on jurisdictions like California with high cut scores to lower that threshold. It could also add momentum to the burgeoning movement to overhaul the bar exam itself.
May 21, 2019 at 01:57 PM
4 minute read
The original version of this story was published on Law.com
Three days after the American Bar Association decided to toughen the bar passage standard for law school accreditation, legal educators have sharply diverging views on what the new rule will mean and how things might change—or not.
The Council of the Section of Legal Education on Friday adopted a long-debated rule change that reduces the time—from five years to two years—that schools have to get at least 75 percent of their graduates to pass the bar exam.
Proponents say the ABA rightly has cracked down on underperforming campuses, while opponents argue that the change will exacerbate the uneven playing field between schools in different jurisdictions and imperil diversity efforts.
What's clear, however, is that the ABA was responding to the growing pressure for law schools to graduate students who can pass the all-important test, given the record number of exam failures in recent years.
Southwestern Law School dean Susan Westerberg Prager said that the failure of the new standard to account for different exam cut scores across the country disadvantages schools in jurisdictions such as California that have relatively high thresholds.
“Even those of us in California who will meet the new standard, as Southwestern will, suffer negative effects, because the national comparisons published by the ABA and used in rankings paint a misleading picture,” she said. “Of course people will assume that schools in states with low pass rates are 'less good' than schools which are in reality weaker but are located in states with high or higher bar pass rates.”
Others, including Pepperdine University law professor Derek Muller, predict that some lower-performing schools will make adjustments to try and up their bar passage rates but that the new standard won't spur a sea change throughout legal education.
“I won't expect anything too dire,” Muller wrote on his blog, Excess of Democracy. “While it's safe to say that 30 or so law schools have something to worry about, a much smaller number are facing existential threats to their schools.”
The heat of the debate over the bar pass standard has cooled significantly in recent months as many opponents anticipated that the council would move forward with a tougher standard that was twice rejected by the ABA's House of Delegates.
“I think people had already said what they were going to say about it,” said Law School Admission Council president Kellye Testy, noting that few people attended the Council's May 17 meeting in Chicago or submitted new letters in support or opposition of the change.
In addition to reducing the compliance time to two years for 75 percent of their graduates to pass the bar, the new standard eliminates a provision that permitted schools to meet the standard by having a first-time bar pass rate within 15 percent of the average within their jurisdictions. Also under the old rule, schools were required to report bar outcomes for only 70 percent of each graduating class.
The new rule eliminates the first-time pass rate provision and requires schools to report outcomes for all graduates. If schools miss the 75 percent pass rate cut, they could lose their ABA accreditation.
Recent bar exam data from the ABA showed that 23 schools would have failed to meet the new standard based on results from the class of 2016.
William Wesley Patton, a lecturer at the University of Southern California Gould School of Law whose analysis of the bar pass data concluded that the 49 schools at risk of missing the new standard enroll 37 and 35 percent of the nation's African American and Hispanic law students, said the ABA council could have other goals in mind.
“Either the ABA Council simply ignored the clear empirical evidence that the new bar standard will decrease diversity in the bar, or it passed the new standard with the hope that states, like California, that have unreasonably high bar cut scores will lower those metrics in order to ameliorate the Council's action,” Patton said.
Added pressure on jurisdictions with high bar exam cuts scores to lower them is one possible outcome of the new rule, several observers said. California, which has the highest cut score in the country at 144, likely will not want to see the ABA accreditation of some of its longstanding schools threatened, they said.
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