Nearly 70 percent of the entering class at the University of the District of Columbia David A. Clarke School of Law was black in 1998. A decade later, that figure hovered at around 30 percent -- the lowest percentage among the country's six historically black law schools.
The catalyst for that shift was a 1999 letter from the American Bar Association urging the school to examine its admissions standards and low first-time bar-passage rates. The school responded by accepting students with higher credentials, but the percentage of black students began to decline as the average Law School Admission Test (LSAT) scores rose.
That experience highlights the dilemma now confronting the ABA. The organization is trying to reconcile the legal profession's need for greater diversity with its desire to push law schools to better prepare students to pass the bar. For the second time in four years, it is considering raising the minimum bar-passage-rate requirement as part of a comprehensive review of law school accreditation standards.
Diversity advocates mobilized against the push in 2007 out of fear that it would discourage schools from accepting students -- often from disadvantaged backgrounds -- with lower credentials but high potential. Once again, they are gearing up for a fight. "I don't think any of the previous arguments have gone away," said Ngai Pindell, a professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas and a board member of the Society of American Law Teachers, which opposes any change. The organization "is still concerned with the possible effects on curriculum and on diversity."
The ABA's Standards Review Committee is well aware that the bar-passage requirement is a charged issue. Its chairman, Santa Clara University School of Law Dean Don Polden, sat on the committee that drafted the 2007 changes. "It was very controversial," he said. "There was a lot of concern over what the sufficient minimum standard was, and how schools would comply with that. It's like deja vu all over again."
WADING INTO CONTROVERSY
In fact, Polden hadn't expected the standards review committee to wade into the controversy again, given that the bar-passage rules went into effect only in 2008. However, members of the ABA Council of the Section of Legal Education and Admissions to the Bar, which has the final say on accreditation matters, asked Polden's panel to take up the matter. "There is concern on the council that the current standard isn't rigorous enough and doesn't set a high enough benchmark," he said.
The hope is that higher standards would push schools with lower passage rates to invest more in academic support and bar preparation, Polden said. They also would serve a consumer-protection function, assuring law students a reasonable expectation of passing the bar.
The ABA has already signaled that it takes bar-passage rates seriously. It revoked provisional accreditation from the University of La Verne College of Law in Ontario, Calif., in June because of the school's low bar-passage rates. In 2009, a scant 34 percent of La Verne students passed the California bar examination on the first try, and the school's first-time bar-passage rate was 53 percent in 2010 -- improved, but still not good enough, according to the ABA.
Applying a bright-line bar-passage standard is a fairly new idea for the ABA. Before 2008, the ABA spelled out no specific bar-passage minimum. Instead, it enforced what was called the "70/10 Rule": At least 70 percent of the school's first-time bar takers had to pass the exam in the school's home state. In the alternative, the first-time bar-pass rate could be no lower than 10 percent below the average of other ABA-accredited schools in that state.
The U.S. Department of Education, which has authorized the ABA to be the national accreditor of law schools, asked for a clearer standard in 2007. After protracted wrangling, the ABA adopted a requirement that at least 75 percent of a law school's graduates pass the bar exam in at least three of the past five years. Schools can also meet the standard if their first-time bar-passage rate is no more than 15 percent below other ABA schools in the same state during three of the past five years. The 15 percent requirement is intended to level the playing field across states, given that passage rates vary widely depending on jurisdiction. The outcome was a compromise, representing a minimum standard higher than what diversity advocates wanted but lower than the initial proposal.
The existing standard is a problem for several reasons, according to a November memo submitted by the ABA subcommittee examining bar-passage rates. The standard is "seen by many as providing an extremely low threshold for bar passage compliance," the panel wrote. Additionally, some law school administrators have interpreted compliance to mean that they don't have to meet other standards pertaining to educational objectives and admissions.
The new proposal would require that at least 80 percent of graduates pass the bar in three of the past five years, or that first-time bar-passage rates be no more than 10 percent below other schools in the same state -- bringing the standards closer to the test used before 2008.
That change is intended to force law schools to pay more attention to how well they are preparing students for admittance to the bar, said Susan Westerberg Prager, executive director of the Association of American Law Schools. The flip side is that the change could deter schools from taking the risk of accepting students from underrepresented groups who historically have lower average grades and LSAT scores, she said. "These two things are in tension with one another," Prager said.
The proposed standard would pose particular problems for law schools at historically black colleges and universities, according to South Texas College of Law professor Gary Rosin. Historically black law schools have tended to enroll students with lower LSAT scores, and students with lower LSAT scores are at greater risk of failing the bar exam, he wrote in testimony submitted to the ABA.
Rosin estimates that five of the six historically black law schools would not meet the proposed standard -- at least one requiring that schools have a first-time bar-passage rate no more than 10 percent below the state average. Those schools might respond to higher standards by accepting a larger number of non-minority students, Rosin said -- as happened at the University of the District of Columbia. Rollbacks in minority admissions at historically black law schools would do significant harm to diversity in the legal profession, given that those six schools accounted for more than 16 percent of the black students enrolling in law school between 2005 and 2009, Rosin said.
LeRoy Pernell, dean of Florida A&M University College of Law, takes this view. "When you pick a number, whether it's 75 percent or 80 percent, and the statistics tell you that virtually every historically black college will be in noncompliance, it's a matter of grave concern," he said. "We have yet to see the full impact of the 75 percent standard, as far as whether it's accomplishing what it was intended to accomplish. What purpose is served trying to change it barely four years later?"
Not everyone agrees that the historically black law schools are most at risk of losing accreditation should the minimum bar-passage rate increase. "I don't appreciate historically black law schools being cast as those most in danger by this," said North Carolina Central University School of Law Dean Raymond Pierce. "I can think of many other law schools in this country that would have more problems than we would have."
The bar-passage proposal generated a spirited debate during the Standards Review Committee's most recent meeting on July 9 and 10 in Minneapolis. E. Christopher Johnson Jr., an associate professor and LL.M program director at the Thomas M. Cooley School of Law, distributed a list of statistics showing the lower average LSAT scores of various minority groups and the rates at which they are shut out from law schools. On the other side, National Conference of Bar Examiners President Erica Moeser argued that the proposal wouldn't go far enough to ensure that students have a reasonable chance of passing the bar.
"I see the current standard as a license to exploit students," Moeser said, noting that schools now have years to improve bar-passage rates before they run afoul of the standard. "Any improvement in the minimum passage rate will get schools to dig a little deeper."
The committee reached no final decision, and is closely considering the research and comments being submitted, Polden said. "I think this issue is just coming back on people's radar screens. There will be more concerns that surface. Some of the law schools that are on the cusp of an 80 percent bar-passage rate know that a lot more will be demanded of them in order to get their graduates to meet that."