While announcing the fate of the fall bar exam on Thursday, the California Supreme Court blindsided just about everyone with related news: Justices would drop the passing score on the exam from 144 to 139—immediately and permanently.

The decision marked a sea change for a court that for years resisted calls to lower the second-highest-in-the-nation cut score, even as the pass rate slumped to historic lows twice between 2018 and 2020. Justices said repeatedly they wanted more studies and solid evidence that a score change was warranted.

In a letter to state bar leaders Thursday, the court's clerk referenced the lower score order only briefly, citing "consideration of the fact that California is one of two states with the highest pass score for its minimum competency exam, and based on findings from recently completed bar examination studies as well as data from ongoing studies."

Justices on Friday declined through a spokesman to talk about what inspired their decision.

"In a crisis, people get out of their business-as-usual mode," Assemblyman Mark Stone, chair of the Judiciary Committee, told The Recorder on Friday about the court's decision. "I'm really happy they saw the opportunity to do what they did in this environment."

Stone and several lawmakers sent a letter to the court in June, pleading for a lower exam score. They noted the abysmal 26.8% pass rate on the February exam as well as the gaping success-rate gap between whites who took the test and African Americans, Asian Americans and Latinos.

A 2017 study by the state bar found that lowering the cut score to 139 on the July 2016 exam would have resulted in hundreds of additional applicants passing, and it would have raised the success rate substantially among racial minorities.

Stone said he didn't know in advance that the court would lower the score to a figure just slightly higher than what the letter-writers had sought. "I'm just happy that they made the decision," he said.

Jennifer Mnookin Jennifer Mnookin (Courtesy photo)

Jennifer Mnookin, dean of UCLA School of Law, credited a "confluence of events," including the pandemic, a public "racial reckoning" and a bad run of recent bar exam pass rates for the court's action. Justices appeared well informed on issues surrounding California's high cut score in a meeting with law school deans several months ago, Mnookin said.

"It's clear that they've been paying close attention and it's something that's obviously been on their minds," she said.

Deans and law school graduates were still sorting through the details of the high court's announcement on Thursday, which also included authorization of an October online exam and a provisional licensing program through 2022.

Although several deans said they were generally pleased with the package of changes, some graduates remain unhappy the court did not grant permanent diploma privilege, the ability to practice law without having taken and passing the exam.

UC Berkeley School of Law Dean Erwin Chemerinsky said that he had heard from just a few students by Friday afternoon.

"Most of all, they are relieved that the decision has been made," he said in an email. "The students I have heard from seem to be planning for the October bar exam."

"I applaud the decision of the California Supreme Court," the dean said. "I think it's a three-part approach—online exam in October, lowering the cuts core, and provisional licenses—that recognizes the unique situation and the needs of our graduates."

In the coming months, the state bar will release details about how the bar exam will be administered online and how the provisional licensing program will work. Mnookin said she received confirmation from bar officials Friday that students who plan to take the October exam can concurrently apply for the temporary license.

Questions remain, too, about what kind of supervision will be required for provisional licensees and whether enough work opportunities will exist for potentially thousands of law school graduates.

Stone said Chief Justice Tani Cantil-Sakauye has mentioned trying to tap some state pandemic-relief money to fund licensees' work on landlord-tenant disputes and other legal issues driven by closures.

"It would also have the added benefit of getting people used to working in the legal services realm," Stone said.

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