Judith Gundersen. Courtesy photo

Things may finally be looking up for February bar takers.

The national average score on the Multistate Bar Exam—the multiple-choice portion of the test—increased by 1.2 points to 134 for the February 2019 test, according to the National Conference of Bar Examiners. That represents the first increase in the mean February MBE score since 2013, which was followed by a five-year slide in bar exam pass rates. (Read more about that decline in the first installment of “The Big Fail,” a four-part series on falling bar pass rates and their impact on the legal industry.)

“This is good news,” said national conference president Judith Gundersen in an interview Tuesday. “It should translate into higher pass rates because the MBE is half the exam. We would expect that in jurisdictions that do have a better MBE score, their pass rates will go up. Now, not every jurisdiction had an increase in their MBE mean.”

Early results from the February exam are mixed. The Pennsylvania Board of Bar Examiners announced last week that 60 percent of the 510 people who took the February exam passed. That's up from 53 percent the previous year. Virginia's February pass rate went from 50 percent in 2018 to 63 percent this year.

However, the overall pass rate slipped slightly in Florida, where 57.3 percent of takers passed. The pass rate was 57.9 percent in 2018. Illinois also posted a lower pass rate at 52 percent—three percentage points lower than in 2018. Most jurisdictions have not yet released their February results. New York is expected to release them later this month, while California generally announces pass rates midway through May.

Significantly fewer people take the bar exam in February than in July, which is the more closely watched of the two test administrations. This year, 21,316 people took the February exam, compared with 45,274 in July of 2018. The February exam also has a higher percentage of repeat bar takers, so pass rates tend to be lower. (The average MBE score last July was 139.5—more than five points higher than the most recent February average.)

According to the new data from the national conference, the percentage of people taking the bar for the first time in February continued to drop this year. They accounted for just 22 percent of recent test takers. Similarly, the percentage of people taking the bar again after already passing in another jurisdiction continued to fall, landing at 6 percent. The national conference did not have data for 10 percent of February test takers, as to whether they were first-time or repeat takers.

Since first-time test takers and takers who have already passed the exam in another jurisdiction generally pass at a higher rate than those repeating the exam after failing, the higher average MBE score for February is somewhat unexpected. Repeat test takers saw a larger increase in their average MBE score than did first-time takers, the national conference noted.

“That surprised us a little,” Gundersen said. “It's great that the repeaters improved so much. What does that mean? I don't know. Did people study differently, or did they put more time into it? Our researchers are looking at it. Part of it—for us—is that there is a lot we don't know. We don't know what people did to prepare for the exam. We don't know about their curriculum choices.”

It's uncertain whether the increase in the February average MBE marks the start of a sustained recovery in pass rates. Many legal educators hoped that a higher average MBE on the July 2016 and 2017 bar exams meant that pass rates were recovering, but the average MBE sank to a historic low the following year.

Derek Muller, a professor at Pepperdine University School of Law who tracks bar exam trends on his Excess of Democracy blog, said that the uptick in February's average MBE score could correlate to the large number of people who failed the bar in July if there were many people who just barely missed the cut then.

“It might simply have been some bad luck from test-takers [in July], and there were more near-fails than previous years,” he said. “So that cohort looked stronger this February 2019.”