Originally published on Above the Law.
More than 90 law school deans have asked their accreditor to halt new standards that would hold schools accountable for very low bar passage rates.
Last October, the Council of the ABA Section of Legal Education & Admissions to the Bar approved two new standards to stop exploitative admissions and retention practices. At a time when demand for law school decreased significantly, a minority of law schools began admitting swaths of students who, after three or more years of legal education, were not adequately equipped to pass the bar exam.
Why would a law school choose to do this? To keep tuition dollars flowing.
The Council of the ABA’s Section of Legal Education and Admissions to the Bar has approved a hotly debated proposal to tighten the accreditation standard governing bar passage rates. When the new standard takes effect, schools will have to demonstrate that seventy-five percent of graduates who choose to take a bar exam pass that exam within two years.
Opponents of the standard argued that it might reduce racial and ethnic diversity in the legal profession. Council members, however, largely rejected that argument. Raymond Pierce, former dean of the North Carolina Central University School of Law, distinguished between programs that give students “an opportunity” and those offering “a false chance.”
For more, see this story.
The ABA Section of Legal Education’s Standards Review and Data Policy Committee voted unanimously today to recommend that the Section’s Council approve revisions to Standards 501 and 316.
This comes on the heels of a multi-month notice and comment period, which saw a number of comments about the revisions.
The committee recommended that the revised standards be adopted as proposed.
By taking this action, the committee acknowledges that its primary responsibilities are protecting the public and students, not law schools.
To many, late October signals nothing more than fall in full swing, pumpkins, or costumes. In late May, we look forward to the Memorial Day holiday and long weekends. Yet, the last weekend of every October and May, Georgia bar takers anxiously await exam results. Some stalk the postman. Most spend the day refreshing a webpage, hoping and praying their name appears on the public pass list.
The stages of grief—denial, anger, bargaining, depression, and acceptance—are experienced by one who fails a state bar exam. Imagine discovering that a family member is alive after grieving their death for ten months. This week, 90 Georgia bar takers—45 from July 2015 and 45 from February 2016—were informed that the thing they grieved was, in fact, alive. Though their names failed to appear on that very public pass list, they indeed passed the Georgia bar exam.
In the memo announcing results from the July 2016 MBE, Erica Moeser also notified law school deans about an upcoming change in the test. For many years the 200-question exam has included 190 scored items and 10 pre-test questions. Starting in February 2017, the numbers will shift to 175 scored items and 25 pre-test ones.
Pre-testing is an important feature of standardized exams. The administrator uses pre-test answers to gauge a question’s clarity, difficulty, and usefulness for future exams. When examinees answer those questions, they improve the design of future tests.
From the test-taker’s perspective, these pre-test questions are indistinguishable from scored ones. Like other test-makers, NCBE scatters its pre-test questions throughout the exam. Examinees answer each question without knowing whether it is a “real” item that will contribute to their score or a pre-test one that will not.
So what are the implications of NCBE’s increase in the number of pre-test items? The shift is relatively large, from 10 questions (5% of the exam) to 25 (12.5% of the exam). I have three concerns about this change: fair treatment of human research subjects, reliability of the exam, and the possible impact on bar passage rates. I’ll explore the first of these concerns here and turn to the others in subsequent posts.
Erica Moeser, President of the National Conference of Bar Examiners, sent a memo to law school deans today. The memo reported the welcome, but surprising, news that the national mean score on the MBE was higher in July 2016 than in July 2015. Last year, the national mean was just 139.9. This year, it’s 140.3.
That’s a small increase, but it’s nonetheless noteworthy. LSAT scores for entering law students have been falling for several years. The drop between fall 2012 and fall 2013 was quite noticeable: Seventy percent of ABA-accredited law schools experienced a drop in the 25th percentile score of their entering class. At 19 schools, that score fell 3 points. At another five, it was 4 points.
LSAT scores correlate with MBE scores, so many observers expected July 2016 MBE scores to be lower than those recorded in 2015. Moeser, for example, has repeatedly stressed the link between LSAT scores and MBE ones. She recently declared: “What would surprise me is if LSAT scores dropped and bar pass rates didn’t go down.”
Moeser just received that surprise: Students who began law school in fall 2013 had lower LSAT scores than those who began a year earlier. The former students, however, beat the latter on the MBE after graduation.
So What Happened?
Unpacking this news will take more time and data. Moeser mentions in her memo that the mean MBE score increased in 22 jurisdictions, fell in 26, and remained stable in two. Teasing apart the jurisdictions will provide insights. School-specific results will be even more informative in exploring why the overall score rose.
For now, I offer four hypotheses in descending order of likelihood (from my perspective):
The good news keeps coming for law school reform advocates. The ABA Section of Legal Education and Admissions to the Bar has taken its next affirmative step towards holding law schools accountable for their exploitative admissions and retention choices.
Soon, the Council for the Section of Legal Education will publish the proposed ABA accreditation standard changes for public comment. The Council will assess any new information it obtains and consider approving the new standards in October. Although the Council is the final authority for law school accreditation, the ABA House of Delegates will vote in February. The process allows the House a formal but non-binding say in new standards.
Let’s review the proposals. (more…)
The National Conference of Bar Examiners (NCBE) has released the March 2016 issue of their quarterly publication, the Bar Examiner. The issue includes annual statistics about bar passage rates, as well as several other articles. For those who lack time to read the issue, here are a few highlights:
In his Letter from the Chair, Judge Thomas Bice sounds a disappointingly hostile note towards law students. Quoting Justice Edward Chavez of the New Mexico Supreme Court, Bice suggests that “those who attend law school have come to have a sense of entitlement to the practice of law simply as a result of their education.” Against this sentiment, he continues, bar examiners “are truly the gatekeepers of this profession.” (P. 2)
NCBE President Erica Moeser, who has recently tangled with law school deans, offers a more conciliatory tone on her President’s Page. After noting the importance of the legal profession and the challenges facing law schools, she concludes: “In many ways, we are all in this together, and certainly all of us wish for better times.” (P. 5)
Scott Johns, Professor of Practice and Director of the Bar Success Program at the University of Denver Sturm College of Law, has posted a thoughtful empirical analysis of the college’s bar preparation program. Johns analyzed 642 students who graduated from the college in 2008–2010 and then immediately sat for the Colorado bar exam. He knew the exam score for each graduate, rather than simply pass-fail status, which allowed for a particularly nuanced analysis. Using multiple linear regression, Johns found the following associations with bar exam score:
All of these associations occurred while controlling for the other variables listed above. Participation in one of the successful bar preparation programs, for example, was significantly correlated with a higher bar exam score after controlling for LSAT, law school grades, sex, minority status, and other factors listed above.
Originally published on Above the Law.
In the face of financial pressure from rapidly falling enrollment, law schools have made ethically questionable admissions and student retention decisions. Bar exam pass rates have suffered already; MBE scores are at their lowest point since 1988. With an enormous drop in admissions standards between 2012 and 2013, as well as in the two subsequent years, bar pass rates for the next three years will be even worse.
The current ABA accreditation standards can theoretically hold dozens of schools accountable through the bar passage standard (Standard 316) and the non-exploitation standard (Standard 501). But the bar passage standard, with its six loopholes, is almost impossible to fail. Meanwhile, the ABA Section of Legal Education is paralyzed without an enforceable line between “capable” and “not capable” — the relevant distinction under the non-exploitation standard.
To the Section’s credit, the organization has responded well to criticism — publicly and privately. At the first meeting after my organization asked the Section’s Council to address trends in law school admissions and retention policies, the Council asked a committee to propose changes to the law school accreditation standards. The Standards Review Committee (SRC) has since made three key recommendations:
1) The SRC submitted a new cumulative bar passage standard to the Council. Under the proposal, at least 75% of all graduates that take a bar exam must pass it within two years. This eliminates the six loopholes.
2) The SRC submitted a new interpretation to the non-exploitation standard to the Council. Under the proposal, there would be a rebuttable presumption that a school that experiences a certain percentage of non-transfer attrition has made exploitative admissions choices.
3) The SRC declined to submit new bar passage outcome transparency measures to the Council. Instead, the SRC advised the Council that it already has the authority to issue new transparency requirements under Standard 509. As I wrote previously, I agree and the Council should publish new information as soon as possible.
The Council will consider these proposals at its Friday meeting in Arizona. If satisfied with the first two proposals, the Council will send them out for a few months of notice and comment. If satisfied with the SRC’s analysis of the Council’s existing authority under Standard 509, the Council can immediately take the necessary steps to authorize new disclosures.
Changes to Standard 316 and Standard 501 will see significant pushback. While greater transparency may help some students make better choices, the other two proposals provide objective tools to stop law schools from exploiting students. The combination poses a significant financial threat to any school choosing money over ethics to survive. Unless the admissions climate drastically and rapidly changes, these new standards will cause exploitative schools to shrink further, merge, or shut down.
One argument against both standards is the limit on opportunity. Schools can take fewer chances on students who do not fit traditional profiles if bar passage rates and degree completion must be more seriously considered during admissions and retention decisions. Before the enrollment crash that began in 2011, however, schools were able to fulfill these lofty ideals without preying upon students with low expectations of completing law school or passing the bar. The “opportunity” offered to students with low predictors of academic success is failing the bar exam up to four times, accumulating six figures of debt, and never obtaining a law job. This is an opportunity for schools to bring in cash from federal student loans, not to increase opportunities for students.
Educational opportunity is too important to let opportunists capture the term. Reclaiming the term from reckless schools concerned primarily with survival is essential for an accreditation process that’s supposed to protect the public, not the law schools. If a school cannot muster a 75% bar passage rate after its graduates have had the opportunity to take the bar exam four times, the school does not deserve accreditation. If a school must rely on failing significant portions of the class to ensure compliant bar passage rates, the school does not deserve accreditation.
When a school cannot figure out how to maintain accreditation under such reasonable rules, it should close. Let the void be filled by the schools that can responsibly grow enrollment or new schools with new economic models.
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