ABA Votes Down Tougher Bar Pass Standard for the Second Time
While the American Bar Association's House of Delegates rejected a proposal to tighten the bar pass standard for law schools, the arm of the organization that oversees legal education could still enact the change.
January 28, 2019 at 06:02 PM
6 minute read
The American Bar Association's policymaking body has once again rejected a proposal to strengthen the bar pass rules that law schools must adhere to in order to remain accredited.
The ABA's House of Delegates voted down the measure Monday during the association's midyear meeting in Las Vegas—just as it did two years ago in Miami. Once again, a cohort of diversity advocates spoke out against the measure, warning that the heightened bar pass standard would disproportionately hurt law schools with high minority enrollment, in turn hobbling longtime efforts to diversify the profession. Delegates debated the measure for less than an hour before voting it down. Only 88 delegates favored the measure while 334 were against it.
The ABA's Council of the Section of Legal Education, which put forth the proposal after coming under fire from the U.S. Department of Education for being too lax on law schools, has argued that a tougher rule is necessary to ensure law schools only admit students who are likely to pass the all-important licensing exam.
The vote comes as bar pass rates have plummeted in many jurisdictions over the past four years, fueling concern that some schools are admitting students they shouldn't or are not doing enough to prepare them for the licencing test. Fewer than 41 percent of those who sat for the California bar exam in July passed. The pass rate was 63 percent in New York.
Following the House of Delegates vote, Barry Currier, the ABA's managing director of accreditation and legal education, said that the revisions would have provided “more straightforward and clear expectations” for law schools.
“Most students go to law school to become lawyers. Becoming a lawyer requires passing the bar exam. How well a school's graduates perform on the bar exam is a very important accreditation tool to assess a law school's program of legal education,” Currier said.
Southern University Law Center Chancellor John Pierre said Monday that he was pleased with the house's rejection of the proposal. He traveled to Las Vegas to share his opposition with the delegates.
“I'm certainly in favor of the council wanting to create some accountability standards that would make sure students are not taken advantage of by schools that might engage in predatory practices,” Pierre said. “But this is really the wrong measure. There are other ways to do that that will not have the same detrimental effect on law schools and law students who want access to legal education.”
But the stronger bar pass rule may yet be enacted. ABA procedure allows the House of Delegates to vote down any changes to the law school accreditation standards only twice. After that, the legal education council may adopt those changes without the concurrence of the House of Delegates. Currier said the council will now reconsider the matter, but has not set a timeline for any decision.
Under the rejected proposal, at least 75 percent of a law school's graduates must pass the bar exam within two years of leaving campus. The existing standard gives law schools five years to meet that threshold. The proposal also eliminates the provision allowing schools to comply as long as their first-time bar pass rate is within 15 percent of the average within their jurisdictions. Moreover, the proposed standard would allow schools to report bar pass data on all their graduates, as opposed to a minimum of 70 percent, as they do now.
The legal education council had hoped that an abundance of information on how law schools would have fared under the proposal would sway the House of Delegates, to no avail. Opponents warned in 2017 that there had not been enough study on the impact of the proposed change and urged the ABA to step back and study the measure further.
The legal education section did just that last year, releasing new figures showing that more than 88 percent of 2015 law graduates passed the bar within two years. Among the 202 ABA-accredited law schools, 19 would not have met the 75 percent pass rate minimum in 2015, that study found. (Among those 19 are two law schools in Puerto Rico, and the soon-to-close Arizona Summit Law School; Whittier Law School; and Valparaiso University School of Law.) In the report supporting the new standard, the council wrote that the “available data provide no support for a concern,” that schools with high minority enrollment would be disproportionately impacted.
“If there are concerns that the bar examination or the scoring of the bar examination have adverse impacts on minority graduates and on diversity in the profession, those concerns are appropriately addressed to the state supreme courts and bar admissions community,” the council wrote. “One cannot be a lawyer without passing a bar exam and the Council's responsibility as an accreditor is to ensure that students/graduates complete the J.D. program and pass the bar examination in sufficient numbers to ensure applicants, the public, and the profession that law schools are not taking undue advantage of students.”
But opponents were not convinced the legal education section's numbers told the whole story. Amy Timmer, interim dean at Western Michigan University Cooley Law School, ran her own calculations and concluded that nearly a third of the nation's minority law students attend 30 or so law schools at risk of falling below the proposed 75 percent threshold.
Still others suggested that a second study is needed to assess the impact of the change on diversity within the legal profession and the pipeline of diverse students into law schools.
“Merely looking at whether particular law schools could have met the new standard in the past does not address the impact the new standard could have on schools' future efforts to reach out to and matriculate diverse applicants,” read an opposition letter from a consortium of ABA entities focused on diversity. “The likely result of the proposed changes to Standard 316 is that law schools facing pressure to increase bar passage to maintain accreditation will adjust admissions standards in a way that decreases the diversity of their student bodies.”
Even though the bar exam proposal failed, some pundits think the push to crack down on schools with low bar pass rates will spur them to improve their admissions and bar preparation programs.
“The fact that the potential rule change came this far may encourage struggling law schools to make necessary reforms in how they look at recruiting and admitting stronger students into their programs, better support students throughout their law school careers and ensure all students have access to comprehensive bar prep,” said Tammi Rice, vice president of Kaplan Bar Review.
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