The ABA’s New Bar Pass Rate Standards

February 17th, 2016 / By Kyle McEntee

Originally published on Above the Law.

Does the ABA Section of Legal Education and Admissions to the Bar do enough to hold law schools accountable through accreditation? People throughout the legal profession, including people at law schools, think the answer is no.

This past weekend, the Section took an important step forward. The Section’s Standards Review Committee is charged with writing the law school accreditation standards, and it’s voted to send a slate of accountability measures to the Council of the Section of Legal Education — the final authority for law school accreditation.

This week’s column is about Standard 316 (the minimum bar passage standard) and Standard 509 (the transparency standard). Next week, I’ll write about the SRC’s proposals for refining the non-exploitation standard, Standard 501.

The Process

At the December meeting, the Council directed the SRC to address Standard 501, Standard 509, and Standard 316 in response to the falling admissions standards and falling bar passage rates, as well as to the continuous and widespread coverage in the popular and legal press. This past weekend, the SRC addressed each of these accreditation standards at its quarterly meeting in New Orleans.

The SRC has passed along revised standards and commentary to the Council, which is expected to send the revisions out for notice and comment after its March meeting. The notice and comment period will last until the June Council meeting, at which the Council will decide to approve, alter, or table the revisions. Once approved, the Council sends the changes to the ABA House of Delegates. The House’s approval is not the final say; if it does not approve a proposed standard, the Council may reconsider it and finalize approval despite the House’s action.

Standard 509

The SRC contemplated two proposals (pg 49-50) that would alter the language of Standard 509. One proposal made a general addition about the goal of ensuring applicants understand their chances of completing the program and being admitted to the bar. The other proposal made specific additions that relate academic attrition and bar passage rates to undergraduate GPAs and LSAT scores.

In the end, the SRC declined to submit any revisions to Standard 509. Its reasoning is two-fold and sound.

First, the SRC believes (rightfully) that the Council has the authority to require schools to report and disclose information related to attrition and bar passage already. Second, the SRC believes (rightfully) that having the Council approve new data collection procedures from the Data Policy and Collection Committee is the quickest way to cause greater transparency. Adding specific and frankly redundant requirements in the standards will only slow the accountability process. The DPCC is already working towards changes for the upcoming questionnaire.

Standard 316

Here’s a summary of the current bar passage standard:

Standard 316: The “bar passage” standard. A school must pass one of two tests. [Test #1] Within 5 years, 75% ultimate bar passage rate or 3/5 years at 75% or more. [Test #2] First-time bar passage rate no more than 15% lower than pass rate of all ABA-approved graduates in same jurisdiction for 3/5 years. Subsection (c) provides that if a school does not come into compliance within 2 years, it may show good cause for an exemption.

The SRC has submitted a new cumulative bar passage standard for the Council’s approval. Under the prpposed standard, at least 75% of all graduates that take a bar exam must pass it within two years. This modifies Test #1 and eliminates Test #2. In doing so, the SRC’s proposed standard eliminates the following loopholes:

• Schools can cherry pick graduate bar outcomes to report a higher composite bar passage rate than it knows its graduates achieved;
• Plummeting bar exam performance at some or many in-state schools makes surviving Test #2 easier for low-performing schools;
• A low-performing school can skew the state-wide average enough to benefit from its graduates failing the bar;
• In states with only one school, those schools have no bar passage requirement;
• Schools can exclude from their bar passage rate calculations graduates who fail a bar exam once and don’t take it again.

Moreover, the proposed standard shortens the time frame in which schools are held accountable for poor bar exam outcomes. The current five-year window makes no sense. After three attempts, 99.3% of people who pass the bar exam have done so. The figure is 99.9% after four attempts.

The first-time bar passage rate still matters and will continue to be disclosed by law schools. It will just play no role in accreditation.

Moving Forward

These are two very important points of progress. Soon, prospective and current students will have information that will help them make more informed choices about whether and where to go to school, as well as whether to continue. Policymakers, journalists, and advocates will also obtain the information they need to hold schools accountable in various ways.

The Council still has one very important choice to make beyond sending Standard 316 out for notice and comment and instructing the DPCC to quickly finalize its progress so the Council can approve new disclosures. The Council must put changes to Standard 501 and Standard 316 on the August 2016 House of Delegates agenda, rather than the February 2017 agenda as it has planned. These two very basic safeguards must be in place so no law school can make excuses about the 2016-2017 admissions cycle when those students first take the bar exam in 2020.