Bar Passage and Accreditation

July 4th, 2013 / By Deborah J. Merritt

The Standards Review Committee of the ABA’s Section of Legal Education has been considering a change to the accreditation standard governing graduates’ success on the bar examination. The heart of the current standard requires schools to demonstrate that 75% of graduates who attempt the bar exam eventually pass that exam. New Standard 315 would require schools to show that 80% of their graduates (of those who take the bar) pass the exam by “the end of the second calendar year following their graduation.”

I support the new standard, and I urge other academics to do the same. The rule doesn’t penalize schools for graduates who decide to use their legal education for purposes other than practicing law; the 80% rate applies only to graduates who take the bar exam. The rule then gives those graduates more than two years to pass the exam. Because the rule measures time by calendar year, May graduates would have five opportunities to pass the bar before their failure would count against accreditation. As a consumer protection provision, this is a very lax rule. A school that can’t meet this standard is not serving its students well: It is either admitting students with too little chance of passing the bar or doing a poor job of teaching the students that it admits.

The proposal takes on added force given the plunge in law school applications. As schools attempt to maintain class sizes and revenue, there is a significant danger that they will admit students with little chance of passing the bar exam. Charging those students three years of professional-school tuition, when they have little chance of joining the profession, harms the students, the taxpayers who support their loans, and the economy as a whole. Accreditation standards properly restrain schools from overlooking costs like those.

Critics of the proposal rightly point out that a tougher standard may discourage schools from admitting minority students, who pass the bar at lower rates than white students. This is a serious concern: Our profession is still far too white. On the other hand, we won’t help diversity by setting minority students up to fail. Students who borrow heavily to attend law school, but then repeatedly fail the bar exam, suffer devastating financial and psychological blows.

How can we maintain access for minority students while protecting all students from schools with low bar-passage rates? I discuss three ideas below.

The $30,000 Exception

When I first thought about this problem, I considered suggesting a “$30,000” exception to proposed Standard 315. Under this exception, a school could exclude from the accreditation measure any student who failed the bar exam but paid less than $10,000 per year ($30,000 total) in law school tuition and fees.

An exception like this would encourage schools to give real opportunities to minority students whose credentials suggest a risk of bar failure. Those opportunities would consist of a reasonably priced chance to attend law school, achieve success, and qualify for the bar. Law schools can’t claim good karma for admitting at-risk students who pay high tuition for the opportunity to prove themselves. That opportunity benefits law schools as much, or more, than the at-risk students. If law schools want to support diversification of our profession–and we should–then we should be willing to invest our own dollars in that goal.

A $30,000 exception would allow schools to make a genuine commitment to diversity, without worrying about an accreditation penalty. The at-risk students would also benefit by attending school at a more reasonable cost. Even if those students failed the bar, they could more easily pay off their modest loans with JD Advantage work. A $30,000 exception could be a win-win for both at-risk students and schools that honestly want to create professional access.

I hesitate to make this proposal, however, because I’m not sure how many schools genuinely care about minority access–rather than about preserving their own profitability. A $30,000 exception could be an invitation to admit a large number of at-risk students and then invest very little in those students. Especially with declining applicant pools, schools might conclude that thirty students paying $10,000 apiece is better than thirty empty seats. Since those students would not count against a school’s accreditation, no matter how many of them failed the bar exam, schools might not invest the educational resources needed to assist at-risk students.

If schools do care about minority access, then a $30,000 exception to proposed Standard 315 might give us just the leeway we need to admit and nurture at-risk students. If schools care more about their profitability, then an exception like that would be an invitation to take advantage of at-risk students. Which spirit motivates law schools today? That’s a question for schools to reflect upon.

Adjust Bar Passing Scores

One of the shameful secrets of our profession is that we raised bar-exam passing scores during the last three decades, just as a significant number of minority students were graduating from law school. More than a dozen states raised the score required to pass their bar exam during the 1990’s. Other states took that path in more recent years: New York raised its passing score in 2005; Montana has increased the score for this month’s exam takers; and Illinois has announced an increase that will take effect in July 2015.

These increases mean that it’s harder to pass the bar exam today than it was ten, twenty, or thirty years ago. In most states, grading techniques assure that scores signal the same level of competence over time. This happens, first, because the National Conference of Bar Examiners (NCBE), “equates” the scores on the Multistate Bar Exam (MBE) from year to year. That technique, which I explain further in this paper, assures that MBE scores reflect the same level of performance each year. An equated score of 134 on the February 2013 MBE reflects the same performance as a score of 134 did in 1985.

Most states, meanwhile, grade their essay questions in a way that similarly guards against shifting standards. These states scale essay scores to the MBE scores achieved by examinees during the same test administration. This means that the MBE (which is equated over time) sets the distribution of scores available for the essay portion of the exam. If the July 2013 examinees in Ohio average higher MBE scores than the 2012 test-takers, the bar examiners will allot them correspondingly higher essay scores. Conversely, if the 2013 examinees score poorly on the MBE (compared to earlier testing groups in Ohio), they will receive lower essay scores as well. You can read more about this process in the same paper cited above.

These two techniques mean that scores neither inflate nor deflate over time; the measuring stick within each state remains constant. A score of 264 on the July 2013 Illinois bar exam will represent the same level of proficiency as a score of 264 did in 2003 or 1993.

When a state raises its passing score, therefore, it literally sets a higher hurdle for new applicants. Beginning in 2015, Illinois will no longer admit test-takers who score 264 on the exam; instead it will require applicants to score 272–eight points more than applicants have had to score for at least the last twenty years.

Why should that be? Why do today’s racially diverse applicants have to achieve higher scores than the largely white applicants of the 1970s? Law practice may be harder today than it was in the 1970s, but the bar exam doesn’t test the aspects of practice that have become more difficult. The bar exam doesn’t measure applicants on their mastery of the latest statutes, their ability to interact with clients and lawyers from many cultures, or their adeptness with new technologies. The bar exam tests basic doctrinal principles and legal analysis. Why is the minimum level of proficiency on those skills higher today than it was thirty or forty years ago?

If we want to diversify the profession, we have to stop raising the bar as the applicant pool diversifies. I do not believe that states acted with racial animus when increasing their passing scores; instead, the moves seem more broadly protectionist, occurring during times of recession in the legal market and as the number of law school graduates has increased. Those motives, however, deserve no credit. The bottom line is that today’s graduates have to meet a higher standard than leaders of the profession (those of us in our fifties and sixties) had to satisfy when we took the bar.

Some states have pointed to the low quality of bar exam essays when voting to raise their passing score. As I have explained elsewhere, these concerns are usually misplaced. Committees convened to review a state’s passing score often harbor unrealistic expectations about how well any lawyer–even a seasoned one–can read, analyze, and write about a new problem in 30 minutes. Bad statistical techniques have also tainted these attempts to recalibrate minimum passing scores.

Let’s roll back passing scores to where they stood in the 1970s. Taking that step would diversify the profession by allowing today’s diverse graduates to qualify for practice on the same terms as their less-diverse elders. Preserving accreditation of schools that produce a significant percentage of bar failures, in contrast, will do little to promote diversity.

Work Harder to Support Students’ Success

Teaching matters. During my time in legal education, I have seen professors improve skills and test scores among students who initially struggled with law school exams or bar preparation. These professors, notably, usually were not tenure-track faculty who taught Socratic classes or research seminars. More often, they were non-tenure-track instructors who were willing to break the law school box, to embrace teaching methods that work in other fields, to give their students more feedback, and to learn from their own mistakes. If one teaching method didn’t work, they would try another one.

If we want to improve minority access to the legal profession, then more of us should be willing to commit time to innovative teaching. Tenure-track faculty are quick to defend their traditional teaching methods, but slow to pursue rigorous tests of those methods. How do we know that the case method or Socratic questioning are the best ways to educate students? Usually we “know” this because (a) it worked for us, (b) it feels rigorous and engaging when we stand at the front of the classroom, (c) we’ve produced plenty of good lawyers over the last hundred years, and (d) we don’t know what else to do anyway. But if our methods leave one in five graduates unable to pass the bar (the threshold set by proposed Standard 315), then maybe there’s something wrong with those methods. Maybe we should change our methods rather than demand weak accreditation standards?

Some faculty will object that we shouldn’t have to “teach to the bar exam,” that schools must focus on skills and knowledge that the bar doesn’t test. Three years, however, is a long time. We should be able to prepare students effectively to pass the bar exam, as well as build a foundation in other essential skills and knowledge. The sad truth is that these “other” subjects and skills are more fun to teach, so we focus on them rather than on solid bar preparation.

It is disingenuous for law schools to disdain rigorous bar preparation, because the bar exam’s very existence supports our tuition. Students do not pay premium tuition for law school because we teach more content than our colleagues who teach graduate courses in history, classics, mathematics, chemistry, or dozens of other subjects. Nor do we give more feedback than those professors, supervise more research among our graduate students, or conduct more research of our own. Students pay more for a law school education than for graduate training in most other fields because they need our diploma to sit for the bar exam. As long as lawyers limit entry to the profession, and as long as law schools serve as the initial gatekeeper, we will be able to charge premium prices for our classes. How can we eschew bar preparation when the bar stimulates our enrollments and revenue?

If we want to diversify the legal profession, then we should commit to better teaching and more rigorous bar preparation. We shouldn’t simply give schools a pass if more than a fifth of their graduates repeatedly fail the bar. If the educational deficit is too great to overcome in three years, then we should devote our energy to good pipeline programs.

Tough Standards

Some accreditation standards create unnecessary costs; they benefit faculty, librarians, or other educational insiders at the expense of students. Comments submitted to the ABA Task Force on the Future of Legal Education properly question many of those standards. The Standards Review Committee likewise has questioned onerous standards of that type.

Proposed Standard 315, however, is tough in a different way. That standard holds schools accountable in order to protect students, lenders, and the public. Private law schools today charge an average of $120,000 for a JD. At those prices, schools should be able to assure that at least 80% of graduates who choose to take the bar exam will pass that exam within two calendar years. If schools can’t meet that standard, then they shouldn’t bear the mark of ABA accreditation.