ABA Proposes Bar Pass Rate Standard

Pushed by the U.S. Department of Education to demonstrate that it has standards that actually mean something — without which it risks losing the privilege of accrediting law schools — the American Bar Association (ABA) has proposed bright-line bar pass rate standards.

The short version is in a press release, ABA Legal Education Section Publishes Proposed Interpretation of Bar Passage Standard for Approval of Law Schools, or you could go straight to the full text of proposed new interpretation 301-6.

Here's the key part of the summary:

For established schools undergoing periodic review, the proposed interpretation offers two alternatives to satisfy the standard.

Under the first option, a school would have to show that in three or more of the most recent five years, in the jurisdiction in which the largest proportion of the school's graduates take the bar exam for the first time, they pass the exam above, at or no more than 10 points below the first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in that jurisdiction during the relevant year. For schools from which more than 20 percent of graduates take their first bar examination in a jurisdiction other than the primary one, the schools also would be required to demonstrate that at least 70 percent of those students passed their bar examination over the two most recent bar exams.

Schools unable to satisfy the first alternative still could comply by demonstrating that 80 percent of all their graduates who take a bar examination anywhere in the country pass a bar examination within three sittings of the exam within three years of graduation.

My very preliminary thoughts on this proposal is that the new rules are (1) slightly odd, (2) will undoubtedly make it harder for law schools to take risks on students and risk creating other unfortunate incentives, (3) threaten to put some schools out of business, and (4) are certain to generate enormous controversy.

I flesh out each of these assertions below. I'd be very grateful for comments and corrections.

(1) The first slightly odd thing about this rule is that the first prong compares the school to all test takers from ABA approved schools, including out-of-state test takers. I'd like to know how out-of-state test takers do compared to in-state. In Florida they do about average; but what about, say, New York and California? Do the many out-of-staters make things easier or harder for local schools? [See (3) below for a discussion of whether a bright-line makes sense.]

(2) For law schools on the cusp, this will create real pressure to do bad things.

(A) They will have an even greater incentive to play it safe on admissions. We know that the one thing the LSAT predicts well is your ability to take tests, and the bar exam is a test. This rule will inevitably work against people with lower LSATs, and that means disproportionately against people whose families have less money and who are not white.

(B) Alternately, if these schools want to keep taking risks in admissions, they're going to have to flunk out more students in order to only graduate those with a high probability of passing the bar. The downside of this policy is a “One L” atmosphere: schools become much more stressful, meaner, places — which may not be conducive to learning.

(C) A correlative pressure will be to teach even more to the bar; and while the bar arguably may test stuff most lawyers should know, nobody could seriously argue that a three-year bar course will tend to produce good lawyers.

(D) Lastly, for schools right on the knife edge, there will be enormous pressure to manage who takes the bar by having weak students delay test-taking: stuff all your at-risk students into one calendar year, and thus improve your outcomes in the alternate year. As a result, I predict an increase in the annual variation in the bar pass rate scores of schools in the at-risk zone.

(3) Some law schools could be in real trouble. I have absolutely no idea what the second and third time pass rates look like; it may be that enough people make it eventually so that the 80% within three tries within three years rule saves schools that would fail the first test. But I rather doubt this is true in all cases. (The conventional wisdom is that anyone can fail once but if you don't pass on second try your chances of ever passing are quite low.)

Consider, the last July's exam Florida numbers as an example — and that's all they are, an example, since the relative Florida numbers bounce around a lot year to year, and these are just last year's July takers not the February plus July numbers which is what the ABA will use:

FSU, 88.1
University of Miami, 85.7
University of Florida, 81.2
Stetson, 81
Florida International, 79
Florida Coastal, 75.4
Nova Southeastern, 74.9
Barry, 72
St. Thomas, 63.1
Florida A&M, 56.3 [*]

Non-Florida law school graduates, 71.6

[*] – Note that Florida A&M is only provisionally accredited and thus different, and in fact somewhat tougher, rules apply to it.

Note also that these numbers are not weighted for size, so this doesn't allow us to compute the state average pass rate.

I've found these July 2004 first-time-taker numbers:

University of Miami (227/270) – 84.1%
University of Florida (185/228) – 81.1%
FSU (102/129) – 79.1%
Florida Coastal (62/84) – 73.8%
non-Florida schools (771/932) – 73.7%
Stetson (113/159) – 71.1%
St. Thomas (68/102) – 66.7%
Nova Southeastern (143/232) – 61.6%
Barry (14/25) – 56%
Overall of first-time takers (1645/2221) – 74.1%

And in 2005, apparently 70.5% of all first time takers passed the exam.

So if we assume the overall pass rate runs from 70-75% (or maybe even lower with February data added in?), then we can say that Florida schools which consistently score under 60% are in trouble, and even Florida schools that tend to be under 65% will be sweating. Florida may not have any accredited schools in the “trouble” group, but there will surely be some sweating.

And Florida A&M (FAMU) — which has to meet an even tougher standard for accreditation — may be in real trouble if this rules goes through before it is accredited. Ordinarily one would expect bar pass scores to go up a bit after accreditation, as good students will be more willing to attend due to the lower risk of the school cratering; even so A&M may face problems keeping its accreditation if this rule goes through.

And here we see the real problem with a bright-line rule. Not all law schools are trying to do the same thing. FAMU has an unusual history. It ran a small law school from 1954 to 1968, when it was shut down by the the Florida Board of Control (later known as the Board of Regents). The legislature re-established this historically Black law school in Tampa in 2000, as part of a deal that also created a law school for Miami's FIU.

FAMU Law has an unabashed mission of extending educational opportunities,

In law, FAMU reaffirms its historical responsibilities to its students to provide important opportunities for service to the diverse communities in Florida, the nation, and the world. FAMU strives to set, to maintain and to reward high standards for faculty, staff and students through continual evolution and pedagogy, curricula, research and public service demands. FAMU will continue to serve as a beacon of hope and a catalyst for change. The College of Law’s role is to promote the development of legal professionals as community leaders who are sensitive to the needs of all people.

FIU is doing fine; FAMU has been provisionally accredited, but is also facing various problems.

One could argue that the standard is reasonable and that FAMU should be held to same bar pass standard as other schools, that failing to meet that standard would in fact be a cruel hoax on a significant number of students who graduate and then fail the bar. There's merit in that view.

But there's also merit in the contrary view, that the standard is arbitrary (why those numbers?), and that whatever the standard, the legal ecosystem ought to have a place for schools that admit at-risk students, knowing that some, even many, will not make it. So long as students understand what they are getting into, is the public really well served by a rule that prevents a school like FAMU from existing even if forty-some percent of its graduates will fail the bar on their first try?

(4) Unsurprisingly, the proposed rule is already controversial. A number of law school Deans are organizing against it.

Previous relevant posting: Bar Pass Rates are Over-Rated As A Measure of Law School Quality (“Let me start by saying that there certainly comes a point where a substantially lower bar pass rate than other schools in the state is a sign of a problem that a law school should work to fix.”)

Update: See More on Proposed ABA Standard on Bar Pass Rates