State Bar Study Says 'Maybe' on Lower Exam Passing Score
ALM Media
Updated
A much anticipated study commissioned by the state bar has found that California could cut its notoriously high bar exam score and still ensure that those who meet lawyer competency minimums are qualified to practice.
Without issuing an unequivocal conclusion, the study found that the existing cut score of 144 the highest in the country with the exception of Delaware's 145 is a valid standard, but that a slightly lower score of 141 would also be appropriate.
Members of the bar association's Committee of Bar Examiners met Monday to discuss the report and consider two options: leaving the cut score as is, or lowering it on an interim basis to 141. Much of the discussion centered on the tension between access to justice and protecting the public, and how the state ought to define minimum lawyer competence.
Committee Chairwoman Karen Goodman called it "a great moment of opportunity to deal with these issues concerning the bar examination."
The state bar will gather public comment on the study and those options through Aug. 26, said spokeswoman Rebecca Farmer, and the board of trustees plans to make a final recommendation to the Supreme Court in early September.
The prospect of a lower minimum passing score will be welcome news for the approximately 10,000 people who sat for the Golden State's bar exam last week. The Supreme Court of California in late June asserted its authority to set the bar exam cut score, a decision it had previously delegated to the state bar. Moreover, the court indicated that it will consider the new report in reaching a decision and could apply any change retroactively to those who sat for the July 2017 exam.
As a result, it's possible that July test takers who would have failed under the existing cut score might actually pass should the court lower the cut score this fall. (A decision from the court could come as early as September, and exam results are typically released in November.)
The report was prepared for the state bar by Chad Buckendahl, a partner with educational assessment consulting firm ACS Ventures. The study was based only on the written portion of the bar exam and excluded data from the Multistate Bar Exam the 200 multiple-choice-question portion of the exam used by all jurisdictions.
California's bar exam has become a target of growing criticism among law school deans and others who say the cut score is too high. They point to plummeting pass rates in the state, which fell from 56 percent in July 2013 to 43 percent in 2016. The pass rate for last July's exam would have been 8 percent higher had the state used the proposed 141 minimum score, according to the new study.
Bar pass rates have declined in many jurisdictions during the same period, which some have attributed to law schools admitting less-qualified applicants. But California has maintained the lowest pass rate for decades; thus, the recent decline is especially painful for many of the state's law schools.
The new report and the committee's recommendations aren't going over well with some legal educators. Deans at the University of California, Hastings College of the Law and the University of California, Los Angeles School of Law said Monday that they have serious concerns about the study's methodology.
Researchers used the existing 144 cut score to anchor the report, rather than starting from scratch with new standard for minimum lawyer competency, said David Faigman, dean at Hastings. The absence of Multistate Bar Exam data is another shortcoming, he said.
"I think the study is fundamentally flawed," he said. "I and other deans tried to tell the bar that it was flawed, but they rushed the study to completion."
Jennifer Mnookin, law dean at UCLA, said that any bar exam study should be truly independent of the state bar. She said opposes both proposals.
"It's hardly a giant surprise that a study that the bar commissioned and whose terms and approach they defined has managed to come out with a recommendation that supports almost precisely what they've been doing without evidence for the past 30 years," Mnookin said.
Faigman and Mnookin are among the 20 deans of California's American Bar Association-accredited law schools who wrote to the Supreme Court in February asking it to temporarily lower the pass rate while the state bar examined the cut rate. The court declined to do so at that time, but now appears poised for action.
The deans argued that California bar takers do just as well or better on the Multistate Bar Exam as the national average, yet they fail at higher rates because of the unusually high cut score. They suggested a cut score between 133 and 136.
Moreover, the state bar hasn't provided any justification for its high cut score, the deans wrote.
The California bar's executive director, Elizabeth Rindskopf Parker, effectively agreed with that assessment at a February hearing before state lawmakers on the bar exam. She said, "there's no good answer" for why the state requires the second-highest bar exam passing score in the nation.
Faigman said a better course of action would be to temporarily lower the cut score to the national average of 135, then spend the next year conducting a comprehensive bar exam study. He and other law deans plan to offer their thoughts to the state bar during the public comment phase, but will also consider making their own recommendation directly to the Supreme Court, he said.
In addition to determining whether its graduates can practice law in California, the bar exam may also soon play a larger role in law school accreditation. The ABA is considering adoption of a tougher bar pass rule for law schools, which would require at least 75 percent of a school's graduates to pass within two years. The ABA's House of Delegate rejected that change in February, but the section tasked with law school accreditation is re-evaluating the proposal and may bring it back in early 2018.
Deans of the California law schools are among the opponents of a stricter bar pass rule, saying they would be disproportionately penalized due to the state's high cut score.
