Panel Near Decision on Law Schools' Bar Exam Passage Rates
Following years of deliberation, the panel overhauling the American Bar Association’s law school accreditation standards is near a decision about whether to tighten the rules governing rates of bar-examination passage by graduates.
The ABA’s Standards Review Committee will meet Friday and Saturday to discuss a range of proposals, none of which has proven as controversial as the bar-exam passage standard. Now the committee’s chairman, Saint Louis University School of Law professor Jeffrey Lewis, believes the group will finally reach a consensus.
"I think we will make a decision at this next meeting," he said.
The committee has already backed off a suggestion to raise the minimum passage rate from the existing 75 percent within five years of graduation to 80 percent within two years. The National Bar Association—the largest association of black lawyers and judges—and the Society of American Law Teachers this summer wrote a joint letter warning that the proposal would have "dire consequences on law schools with racially diverse populations."
Instead, the committee will discuss retaining the 75 percent passage minimum but requiring that threshold be met within two years rather than five—meaning law schools would have less time to get their graduates accredited professionally.
"This is a variation on the current interpretation, really," Lewis said. "It focuses on ultimate passage, not first-time passage—which seems like something a lot of the critics don’t understand."
The bar-passage standard is intended as consumer protection for law students, ensuring that schools adequately prepare them to pass the bar exam and enter practice in exchange for three years of tuition, Lewis said.
The National Bar Association praised the committee for moving away from the 80 percent passage minimum, but still fears harm to members of minority groups, some of which tend to score lower on standardized tests, studies show. "Everyone has the goal of consumer protection, but standards should be thoughtfully constructed," Patricia Rosier, the organization’s president, said in late January.
"The [committee] has failed to base its proposal on any publicly available data on ultimate pass rates, or any evidence that bar examinations and pass rates are reliable, valid measures of the abilities of graduates to practice law," she said. "The unintended consequence will cause many law schools to limit enrollment to students with higher standardized test scores instead of allowing students to prove they can succeed."
Erica Moeser, president of the National Conference of Bar Examiners and a former committee member, has observed that relatively few candidates sit for the bar exam more than five times. For that reason, she argues, a two-year window for passage should not prove unduly burdensome.
The argument is hardly new. The ABA set its specific bar-pass minimum only in 2008. Earlier, it enforced what was known as the 70/10 Rule—70 percent of school's first-time test takers had to pass within the school's home state. Alternatively, the first-time pass rate could be no more than 10 percent below the average for other ABA-accredited schools in that state. The U.S. Department of Education demanded a clearer rule, however.
The rule the ABA came up with does allow an alternative to the 75 percent rule—schools can meet the standard with bar-exam passage rates no more than 15 percent below other ABA-accredited school in their states. The idea was to level the playing field, given different passage rates across jurisdictions.
But this safety valve would be eliminated under the pending proposal. That worries the National Bar Association, which cites research showing that minority law students disproportionately sit for the bar exam in states with lower overall passage rates, such as California.
That won’t be the only juicy matter the committee takes up. It will also consider increasing the practical-skills training that law students must complete. Existing rules require only one credit hour of so-called experiential learning, including clinics, externships and simulation-based courses.
The committee is considering boosting that requirement to either six or 15 credit hours—the latter option supported by the Clinical Legal Education Association. A number of Yale Law School professors and dean Robert Post have sent the ABA letters opposing the 15 credit hour option.
"Whatever the career pattern, students need to be provided with the analytical framework and knowledge necessary for solving complex legal problems and policy issues," the professors wrote. "In our judgment, 15 credit hours of experiential courses could be useful for some students, but certainly not all or even most students."
The committee also will discuss whether to allow students to earn money as well as academic credit for externships—existing standards bar them from receiving both. The ABA’s law student division believes the change would "send a bold message to our nation’s law students that the ABA Section of Legal Education and Admissions to the Bar is committed to addressing some of the financial hurdles law students encounter financing their legal educations," according to a letter from the division’s leadership.
None of the committee’s decisions will be final, but rather recommendations to the Council of the Section of Legal Education, which has the final word. The ABA hopes to wrap up its overhaul of the standards within the next year.