American Bar Association offices in Washington, D.C.  June 23, 2014.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL. American Bar Association offices in Washington, D.C. June 23, 2014. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

The American Bar Association body that accredits law schools voted on Friday to tighten the bar exam-passage standard that schools must meet in order to get the organization’s accreditation blessing.

The ABA’s Council of the Section of Legal Education and Admissions to the Bar overwhelmingly decided to strengthen its bar pass standard for accredited law schools—a long-debated move proponents said is necessary to ensure law schools don’t admit students unlikely of passing the all-important attorney licensing exam.

The council voted for the stricter standard over the opposition of diversity advocates who warned that schools with large numbers of minority students could lose their accreditation and that the stricter rule would prompt schools to admit fewer minority students. That, in turn, would exacerbate the legal profession’s longstanding diversity problem, they argued.

The changes aren’t final yet. The ABA’s House of Delegates still must sign off, which could happen as early as February at its midyear meeting. Should that happen, the new rule would be in effect for the 2017 graduates who sit for the July bar exam. Critics of the change have vowed to oppose the House of Delegates’ approval.

“I’m very disappointed that the council approved the change despite the opposition expressed in the comments and the testimony they received,” said Howard University School of Law Dean Danielle Holley-Walker, who represented a coalition of deans from the country’s six law schools housed at historically black colleges and universities (HBCU) in opposition. “It feels like our concerns were not taken seriously.”

But Deborah Merritt, a professor at Ohio State University Michael E. Moritz College of Law and vocal proponent of the tougher standard, said the council made the right call. She argued in op-eds and blog posts that law schools with large minority enrollment can’t improve the diversity of the legal profession if their graduates can’t pass the bar.

“I’m pleased but not surprised,” Merritt said Friday. “I think this represents a change in accountability and another step forward in law schools understanding how closely they are integrated into the profession.”

The new rule isn’t a dramatic change, but supporters say it closes several loopholes in the existing standard and makes it more straightforward. It mandates that at least 75 percent of a law school’s alumni pass the bar within two years of graduation—rather than the current five-year period. It also eliminates a provision allowing schools to meet the standard if its first-time bar pass rate is within 15 percent of the statewide average, and a provision enabling law schools to meet the standard based on data from only 70 percent of graduates.

That first-time provision makes little sense for states with just one or two law schools, and allows low-performing schools to meet the standard by dragging down the statewide average with high failure rates, critics said.

“The committee, while respectful of the expressed concerns, ultimately viewed the change as necessary to promote confidence that an ABA-approved law school will, at minimum, be accountable for 75 percent of its graduates passing a state bar examination within two years of graduation,” wrote Pamela Lysaght, chair of the ABA’s Standards Review Committee, in a memo to the council explaining why it recommended the tougher bar pass standards.

The committee also cited data from the National Conference of Law Examiners that shows very few bar takers ultimately pass the exam after two years of initially taking it. Shortening the evaluation period from five to two years should have relatively little impact, it reasoned.

The council in March voted to put the proposed new bar pass standard out for notice and comment, but it wasn’t clear that the council would ultimately adopt it. The ABA received more than a dozen letters in opposition, with nearly as many opponents offering testimony against the change at a public hearing in August. Only a handful of supporters weighed in, including Merritt and Kyle McEntee, executive director of Law School Transparency, which advocates for better consumer information for law students.

Long History

The bar pass standard has something of a tortured history. Stricter rules have been discussed multiple times since 2011, only to stall out amid criticism from diversity advocates.

But the latest round of discussion unfolded against a different backdrop. Bar pass rates have been plummeting across the country since 2014, placing a spotlight on law schools’ admission practices and how they are preparing students for the all-important licensing exam. Early results from the July 2016 indicate that the pass rate freefall won’t abate this year. On top of that, the pool of people applying to law school has shrunk nearly 30 percent since 2010.

Meanwhile, the ABA has come under scrutiny from the U.S. Department of Education for its oversight of law schools. The Education Department last month renewed the ABA’s status as its designated law school accreditor, but not before an advisory committee took the ABA to task for what members viewed as weak enforcement and a dearth of robust rules regarding the outcomes students face after investing three years and thousands of dollars in a legal education.

The Education Department committee members seized on nationwide falling bar pass rates as cause for concern and chastised the ABA representatives for not adopting a stricter bar pass rule sooner—noting that the organization had discussed changing the standard four years earlier but had failed to act.

The council discussed the bar pass proposal for about an hour Friday, focusing on the validity of the diversity concerns raised by deans of the HBCU law schools, minority lawyer groups, and other opponents.

Several council members noted that the coalition of deans from HBCUs offered no data to back up their claims that their schools would be adversely impacted by the change. No school has ever been out of compliance with the current, 75 percent ultimate bar pass requirement, noted Barry Currier, the ABA’s managing director of accreditation and legal education. Additionally, minority law graduates would still be able to take the bar exam as many times as they wish regardless of the change, he said.

Council member Raymond Pierce, a former dean of North Carolina Central University School of Law, a historically black university, said that any potential negative impact on HBCUs has been in the past been used as a smokescreen by other schools with low bar pass rates, “when in reality, you’re talking about filling seats at your school.”

Council member Maureen O’Rourke, dean of Boston University School of Law, said the council would not take steps that hurt diversity, but the body has a responsibility to hold law schools accountable for the outcomes of their students. “Where can we be objective and have a way to get at schools that are a part of the problem, not part of the solution?”

Cynthia Nance, a professor at the University of Arkansas School of Law, was one of a handful of the council’s 21 members who voted against the change, citing a lack of data on the impact it would have on schools.

The bar pass standard appears likely to resurface in the near future. The standards review committee wrote in its memo that a rule potentially allowing 25 percent of law graduates to fail the bar is “problematic.”

Holley-Walker said opponents plan to lobby the House of Delegates to withhold its approval and will likely raise concerns with the Education Department.

“I think this is headed to a much higher-profile fight,” she said.

In a related change, the council on Friday voted to modify its admissions standard to say that law schools with attrition rates of more than 20 percent—not counting students who transfer to another law school—must offer additional evidence that it is in compliance with the ABA’s other admission rules.

Contact Karen Sloan at ksloan@alm.com. On Twitter: @KarenSloanNLJ