Author Archives: Michael Froomkin

Who are the losers under the ABA's proposed new bar pass standard?

Otherwise Occupied, New ABA law school standard interpretation may kill 5 CA schools does some calculations, and even attempts to figure out second-order effects,

The end result: As many as five current ABA-approved law schools could lose their accreditations. Four schools (Golden Gate University School of Law, Thomas Jefferson School of Law, Whittier Law School, and Western State University College of Law) would immediately fail to meet this standard.

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But the fallout may be greater. The loss of those schools bumps the ABA passage rate up, which causes some collateral damage, taking out Chapman University School of Law:

Interestingly, some commentators see the US Department of Education's pressure on the ABA to enact a bar pass standard as an attempt to gut the ABA's support of affirmative action,

Michael Dorf, The Bush Department of Education Tries to Gut Grutter Below the Radar Screen

[The Dep't of Education's] pressure on the ABA is designed to make it hard for law schools to pursue diversity, not to make it voluntary. Under that pressure, the ABA now proposes to make bar passage rates an element of accreditation. [… ] Officially, the Department of Education and the ABA (under pressure) are concerned about the quality of education, but this is pretty clearly also a means of limiting affirmative action at non-elite law schools. (The bar passage rates at elite law schools are sufficiently high that admissions policies would be largely unaffected by the new rule.) Students with weaker numerical qualifications coming into law school fail the bar in larger numbers than those with stronger ones; by requiring higher bar passage rates at the back end, the new standard would limit the ability of law schools to admit students with weaker numbers (but with other qualifications, including their contributions to student body diversity) at the front end.

The proposed changes are objectionable in at least four ways. First, bar passage rates are a very crude measure of the quality of a legal education. Second, to the extent that the issue is consumer protection, simply publicizing bar passage rates should be sufficient to warn prospective students that admission into law school as a 1L does not guarantee admission into the profession after graduation. Third, under the pressure of US News rankings, law schools already have ample incentive to pay attention to their bar passage rates, so the pressure of the new standard would only be felt at those schools that fare poorly in those rankings and/or have made a commitment to taking a chance on students with weaker numbers notwithstanding the price they thereby pay in the rankings. So long as students know what they're getting into (see “Second”), there is no good reason to limit schools' flexibility to pursue such an approach to admissions. And fourth, whether accreditation ought to turn on bar passage rate should ultimately be a matter for the judgment of the legal profession and legal academy, not the ideologues of the Bush administration.

Vernellia Randall, ABA Proposal Threatens Diversity In Legal Education,

Contrary to the implication in this statement that the proposed standard takes a school’s mission into account, and will be receptive to arguments about diversity, the proposal issued by the Council rejected the suggestion that they take a school’s mission into account in determining compliance. Instead, they inserted language about consideration of “student populations served” in a section of the proposal that only applies to schools that are in compliance.

This story is receiving some play in other media outlets. It may mislead individuals and groups concerned about diversity into a false sense of security about the impact of the proposal. As the Patton Study showed, the proposal will put almost all of the diversity-friendly schools out-of-compliance and worsen the state of minority enrollment.

Previous posts:

• ABA Proposes Bar Pass Rate Standard
• More on Proposed ABA Standard on Bar Pass Rates
• Other Perspectives on the ABA's Proposed Bar Pass Standard

Here are some other views of the ABA's proposal on bar pass rates:

Scrivener's Error:

• Initially, note the irony that the Bush Administration's Department of Education is acting in a way to take more power away from states in two areas “traditionally” committed to states — education and regulation of the legal profession. Ironically, this particular effort is yet another argument for national, not state, regulation of attorneys; if the supposed “state's rights” maroons and ideologues who actually make policy in this administration think it important to establish more measurable national standards…

• Under the proposed rubric, almost no law school in either California or Washington State could qualify under the second standard, because so many of the graduates of those schools take the bar in those states… which have pass rates of around 50%. Conversely, it's extremely unlikely that some states with notoriously high bar passage rates will help. Then there's the “Wisconsin issue” — graduates of the University of Wisconsins and Marquette law schools are exempt from their own state's bar exam.

• Well over 85% of the bar exam is drawn from material covered in the mandated first-year courses. Why, then, hasn't the legal profession followed the medical profession's lead and moved to a national exam covering that material shortly after it is actually studied, similar to the two-part medical boards? I suppose part of it is that most law schools are revenue-positive, meaning that they want students to continue.

Ultimately, though, what I find disturbing … [is the assumption that] the bar exam, or bar exam passage rates, measure a damned thing about attorney competence. (Unfortunately, the traditional law-school exam format isn't much better… but that's for another time.) And that's for a very simple reason: With very, very rare exceptions — almost all of which concern either criminal law or trial practice — a lawyer's emphasis cannot be on coming up with “the answer” right now, but with persuasive advice that meets all of a client's needs.

For example, assume that a client comes to an attorney asking whether there's a way to get out of a particular contract (not so hypothetically, an especially abusive vanity publishing contract). What is ultimately in the client's best interest? The bar-exam answer is to look at the contract, figure out what it says and whether it is theoretically enforceable, and give essentially a multiple-choice response. That, however, ignores the relative financial and emotional situations of the parties; the power of potential publicity; jurisdiction; choice of law; counterclaims; and a wide variety of other considerations. No bar exam question ever even considers the possibility of an “efficient breach,” and that's just within the contract itself.

My spouse:

Rhode Island only has one law school, so that unless there are a very large number of very successful out-of-state test takers, Roger Williams University defines the average.

Bill Henderson has a lot of interesting things to say, among them:

• There are a lot of potential problems here. Foremost is the huge variation in bar passage standards from state to state. In every jurisdiction, the ostensible purpose of the bar exam is to screen for “minimal competency” in legal knowledge. But the wide range in MBE cut scores and “equating” practices (which convert essay and MPT scores to the same scale and distribution as the MBE) has been aptly described by Gary Rosin (South Texas Law) as “federalism run amok.”

• … while criterion #1 will cause a lot of panic, most schools will satisfy the “80% over three attempts” rule. [citations] Yet, by the third try, who deserves credit—the graduating law school or the review course?

• Finally, any new bar passage standard for accreditation needs to be accompanied by serious research on which law schools, controlling for entering credentials, are associated with the largest gains in bar exam performance. There are some tricky methodological questions here—e.g., if the MBE score is the dependent variable, using a fixed effects model to deal with differences in cut score—but we certainly have the ability to solve them.

Once we know what curriculum, teaching methods, and (let's not kid ourselves) the attrition policies that produce the best bar results, legal educators can have an intelligent discussion on how to proceed. This might include designing a better bar exam, which has not significantly changed over the last three decades.

SW Virginia Blog notes that Regents University Law school might be one of the school that has trouble with the first prong of the proposed standard.

Previous posts:

• ABA Proposes Bar Pass Rate Standard
• More on Proposed ABA Standard on Bar Pass Rates

Previous post: ABA Proposes Bar Pass Rate Standard

I've been sent the following data on Florida pass rates:

July 06 — 75.1%
July 05 — 70.5%
July 04 — 74.1%
July 03 — 75.8%
July 02 — 78.2%

Note that the Florida Supreme Court raised the minimum score needed to pass the Florida bar in 2003 and again in 2004.

Based on this very limited data set, the idea that the annual pass rate in Florida, given the new higher score needed to pass, is likely in the 70-75% range seems reasonable.

I've also found a treasure trove of statistical data on national bar pass rates in the LSAC National Longitudinal Bar Passage Study (NLBPS) which has a useful “executive summary” from which I learned that (at least before the national move in the last decade to raise the minimum bar pass score), most people who persevered eventually passed the bar:

• The eventual bar passage rate for all study participants was 94.8 percent (21,886 of 23,086).
• The eventual passage rate for all study participants of color was 84.7 percent (2950 of 3482).
• The eventual passage rates for racial and ethnic groups were: American Indian, 82.2 percent (88 of 107); Asian American, 91.9 percent (883 of 961); black, 77.6 percent (1062 of 1368); Mexican American, 88.4 percent (352 of 398); Puerto Rican, 79.7 percent (102 of 128); Hispanic, 89.0 percent (463 of 520), white, 96.7 percent (18,664 of 19,285); and other, 91.5 percent (292 of 319).
• Among those examinees of color who eventually passed, between 94 and 97 percent passed after one or two attempts and 99 percent passed by the third attempt.
• The eventual pass rates increased substantially over first-time rates for all examinees.
• There were no differences in bar passage rates between men and women.

…

• Both law school grade-point average (LGPA) and Law School Admission Test (LSAT) score were the strongest predictors of bar examination passage for all groups studied.
• A demographic profile that could distinguish first-time passing examinees from eventual-passing or never-passing examinees did not emerge from these data.
• Although students of color entered law school with academic credentials, as measured by UGPA and LSAT scores, that were significantly lower than those of white students, their eventual bar passage rates justified admission practices that look beyond those measures.

The importance of this data in the context of the proposed rule is that the data suggest that the second prong of the ABA standards may be much more forgiving than I initially thought: I'm told there may be as many as 20 schools in the US that are in danger of failing the first test (3 years within 10% of state's average pass rate), but it does seem that many of these schools might nonetheless make it on the alternate test, which requires 80% of graduates pass within three tries in three years.

To the extent that this second rule creates an incentive for the schools to help first-time-failers to pass later, that is good for those students — although whether it is also good for their future clients is a matter for debate, one that would turn in part on what we think the bar exam measures.

One also has to wonder, if indeed the second prong of this rule will protect all, or almost all, existing law schools, will the U.S. Department of Education accept it as a meaningful standard?