ABA Rejects Stricter Bar-Pass Rule for Law Schools

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Law schools won’t be subject to a tougher bar pass rule — for now.

The American Bar Association’s House of Delegates on Monday rejected a measure to tighten the existing bar pass rule after a coalition of law deans and diversity advocates mounted a fourth-quarter campaign against it.

The House of Delegates spent an hour debating the proposal during the ABA’s midyear meeting in Miami, hearing testimony from advocates who said the change is necessary to prevent law schools from admitting students who are unlikely to pass the bar and opponents who said it would imperil a large swath of schools at a time of declining bar pass rates and would impede diversity efforts.

The new rule would have given law schools less time to ensure at least three-quarters of their graduates passed the bar exam, or risk losing their ABA accreditation.

“We do not want to try to do a one-size-fits-all approach that may impact the diversity of the profession,” said Phyliss Craig-Taylor, dean of North Carolina Central University School of Law, urging delegates to vote against the change.

The Council of the Section of Legal Education and Admissions to the Bar — the area of the ABA that is authorized by the U.S. Department of Education to accredit law schools — has debated the stricter bar pass rule for years, weighing the consumer interest of law students against concerns that a tougher rule would hurt diversity efforts on campuses and in the legal profession. The council in October finally gave its blessing to a new rule that would require all schools to have at least 75 percent of their graduates pass the bar within two years.

But the measure required final approval from the House of Delegates, which didn’t happen Monday.

Christine Durham, a Utah Supreme Court justice and member of the ABA’s legal education council, told the delegates that some law schools hit with steep applicant declines are admitting people who aren’t qualified and who become weighted down with debt without ever passing the bar. Moreover, historical data on bar passage shows the proposed rule would not disproportionately impact minorities, she said.

Tracy Giles, a lawyer with Giles & Lambert in Roanoke, Virginia, spoke in favor of the tougher standard, citing the debt burden graduates face when they can’t pass the bar exam.

“I haven’t heard anybody offer to give the money back if the student is left hanging, the student’s family is left hanging,” he said. “Some of that burden ought to be shifted right on top of the school.”

But others argued that the proposal was too simplistic and unfair. “Bar pass rates vary dramatically between states, making a national one-size-fits-all standard and bright-line rule problematic,” said Austen Parrish, dean of Indiana University Maurer School of Law — Bloomington, speaking in opposition.

The push for a tougher bar pass standard isn’t necessarily over. Under ABA rules, the House of Delegates can twice reject a resolution from the legal education council, but the council itself has the ultimate say over accreditation standards. Thus, the council could opt to reintroduce the proposal to the House of Delegates in August and adopt it even if the House rejects it in six months.

The intense debate over the bar pass rule has unfolded at an unprecedented time in legal education, when schools are under more pressure than ever due to falling bar pass rates, mounting student debt, and a tight legal job market. The ABA’s legal education council has been criticized by some within the legal profession, the media and the Education Department for being too lenient on underperforming law schools. The tougher bar pass rate was intended in part to stave off criticism and demonstrate that the accrediting body is trying to protect the consumer interests of students while also making the existing rule less confusing.

Although it rejected the bar pass standard, the House of Delegates approved without discussion a new rule under which schools with non-transfer attrition rates of 20 percent or more must demonstrate that they are in compliance with all of the other ABA rules, which is intended to ensure schools only enroll qualified applicants.

Kyle McEntee, executive director of Law School Transparency, said Monday that the new rule on attrition is an “enormous win” and will make it harder for law schools to exploit students who probably won’t succeed in order to take in their tuition dollars. He lamented the House of Delegate’s rejection of the bar pass standard, however, but said his group will continue to push for changes.

“While the [bar pass rule] battle was lost this time, the war is not over,” McEntee said. “The law schools that do more harm than good will be held accountable for terrible bar passage rates.”

Because the bar pass standard failed to gain approval, the existing rule remains in effect. Law schools can meet the existing standard in two ways: At least 75 percent of their graduates pass the bar exam during three or more of the last five years; or the first-time bar pass rate is no more than 15 percent below the statewide average in at least three of the past five years.

The second provision makes little sense in states with just one or two law schools, according to proponents of the tougher rule, and it actually helps schools with a low bar pass rate meet the standard because it drags down the statewide pass average.

A group of 94 law deans, writing under the umbrella of the Association of American Law Schools’ Deans Steering Committee, asked the council on Jan. 13 to withdraw the bar pass standard from the House of Delegates agenda on the grounds that the proposed change needed more study in light of the steep decline in California’s bar passage rate. Short of that, they called on the House of Delegates to reject it. The new rule could imperil the accreditation of many law schools, particularly within the Golden State, where the overall bar pass rate plummeted to 43 percent in July from 56 percent over the last three years, the deans wrote.

Even deans who have been vocal proponents of the need for a tougher bar standard — notably Northwestern University Pritzker School of Law’s Daniel Rodriguez and Syracuse University College of Law’s Craig Boise — said they believe a deeper analysis was now called for due to the low passage rates in California.

Separately, a group of 20 deans from California law schools have asked the state’s Supreme Court to temporarily lower its minimum passing score of 144 while the State Bar of California studies whether that cutoff is too high. The deans want a minimum cutoff between 133 and 136.

The California bar-pass matter is a relative newcomer to the ABA bar pass debate. The longstanding criticism of the ABA’s new bar rule came from diversity advocates who argued that imposing a tougher standard would discourage law schools from admitting minority students, given that minorities on average score lower on the Law School Admissions Test, which is often viewed as a predictor of future bar exam performance.

The deans of all seven of the nation’s law schools housed at historically black colleges and universities opposed the change, as did a myriad of other deans and advocates.

Proponents of the new standard argued that the impact on law schools would not be dramatic given that very few people pass the bar after failing more than four times — the number of exam administrations within the new rule’s two-year window.

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