Dean Danielle Holley-Walker, Howard University School of Law in Washington, D.C. (Tom Callins) Dean Danielle Holley-Walker, Howard University School of Law in Washington, D.C. (Tom Callins)

 
The American Bar Association’s rejection Monday of a stricter bar pass standard for law schools is a win for diversity in the legal profession, or it’s a missed opportunity to protect vulnerable law students.

It depends on whom you ask.

The legal academy reacted swiftly to news that the ABA’s House of Delegates voted down a controversial, long-debated proposal to give law schools two years to ensure at least 75 percent of recent graduates pass the bar exam, instead of the current five years. The proposal also would have eliminated a provision under which law schools can retain their accreditation as long as their bar pass rates are no lower than 15 percent of the statewide average in their particular jurisdiction.

Many law deans applauded the proposal’s failure, citing a need for further study on the rule’s impact at a time of falling bar pass rates. But consumer advocates said it will further enable law schools to admit unqualified students.

“I was pleased,” said Danielle Holley-Walker, dean of Howard University School of Law and a member of a coalition of deans from the nation’s seven law schools housed at historically black colleges and universities who mobilized against the proposed new rule on the grounds that it would disproportionately impact schools with high minority enrollment. “We want to work with the [ABA's] Council of the Section of Legal Education to develop a standard that both values accountability — we all want to make sure that students admitted to law school have a good chance of passing the bar — and values diversity and values differences in law schools. No one wants a standard that forces every law school to be exactly the same.”

But Erica Moeser, president of the National Conference of Bar Examiners, said the ABA’s rejection of the bar pass proposal represents a failure to stand up for the interests of law students who amass significant debt to pursue legal careers.

“The thing that bothers me the most about the rhetoric [in opposition] is that the arguments all seem to be centered on protecting law schools,” Moeser said Tuesday. “Indeed, it’s the law student consumer who should be the object of everyone’s concern. The ABA is really ceding the moral high ground on its expressed concern about law school debt. That debt is never more devastating than to the person who incurs it and cannot achieve a professional license.”

The House of Delegates batted down the proposal at the ABA’s annual meeting in Miami, but it may yet have life. The ABA’s Council of the Section of Legal Education and Admissions to the Bar has the ultimate authority over law school accreditation standards and can adopt rule changes even without the blessing of the House of Delegates. It was unclear Tuesday whether the council would continue to push for the proposal in the face of mounting opposition.

In a statement issued after Monday’s vote, Barry Currier, who oversees the ABA’s legal education section, said the council appreciates the House of Delegates’ “dialogue and conversation.” “We will certainly review this matter for further consideration,” Currier said. “There is no set timeline in the standards or rules for this further process although given its great importance, I would expect the council will promptly review this matter.”

Dan Rodriguez, dean of the Northwestern University Pritzker School of Law, said he is glad the House of Delegates heeded the call from 94 law deans, including himself, for a delay in approving the bar pass proposal. That group, writing under the umbrella of the Association of American Law Schools Deans Steering Committee, last month urged postponement in order to allow for more study.

Rodriguez said Tuesday that he hopes the delay, while welcome, won’t derail the council’s efforts to strengthen the bar pass standard. He said more opinions and data will result in a better rule.

“I continue to be enthusiastically supportive of the effort of the council to look hard at ways in which law schools can be more diligent about consumer protection and the interest of the students they’re admitting,” he said.

But Andrew Morriss, dean of Texas A&M University School of Law, lamented the decision to reject the bar pass proposal on the grounds that more information was necessary. “I think it’s unfortunate,” he said. “There will always be a need for more data, but to use that as an excuse to wait to address a very important problem I think is an unfortunate choice.”

Moeser said the proposal’s opponents are ignoring existing data that show virtually no one passes the bar after failing four times — they either pass by their fourth exam or they stop trying. Giving law schools two years versus five years to reach a 75 percent bar pass threshold should make little difference, she said.

“The existing standard is really no standard at all,” Moeser said. “The proposed standard is really very weak, and it’s being dressed up to seem as though it’s very severe. I think it’s been characterized that way without a factual basis.”

Holley-Walker countered that some minority students need more time to pass the bar exam, not because they don’t make good lawyers but because minorities on average tend to score lower on standardized tests.

Gilbert Holmes, dean of University of La Verne School of Law and a vocal opponent of the bar pass proposal, said that Moeser’s analysis is oversimplified and that persistence on the bar exam varies by law school. Students at elite law schools may only take the exam one or two times, but graduates of so-called “access schools” often take longer to pass, he said.

Holley-Walker said she ultimately would like to see the ABA make minor modifications to the existing rule but retain the two-pronged approach under which schools can meet the standard either by having 75 percent of graduates pass within two years, or by coming within a percentage of the statewide average pass rate. That second provision is more fair to law schools given that pass rates vary widely across jurisdictions, she said. But instead of allowing schools to have a pass rate that’s 15 percent lower than the statewide average, a revised standard might require schools to be within 5 or 10 percent, she said.

Tinkering around the existing standard won’t protect the interests of law students, Moeser said, and the ABA must act soon.

“Delay is really a euphemism for death,” she said of the House of Delegate’s decision. “The ABA needs to step up to the fact that if they’re going to regulate law schools, it needs to be meaningful regulation.”

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