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As it moves toward a schedule of public hearings this month on a proposal to raise the bar examination passing score, the New York State Board of Law Examiners is faced with a solid wall of objection from all 15 deans of the state’s law schools, the New York State Bar Association and — just last week — the Association of the Bar of the City of New York. In a 54-page report issued last March, the Albany-based law board recommended the passing score be increased from 660 to 675 (out of a possible 1,000 points). The report capped three years of study, principally by Stephen P. Klein, Ph.D., a psychometrician for legal and other licensure boards around the country. Objection has focused on two areas: � Klein’s research methodology, which has been challenged by other bar exam groups, notably in Florida and Minnesota. � A potentially unfair effect on minority applicants that would mitigate against the New York bar’s goal of increasing diversity. For example, opponents point to a national study by the Law School Admission Council showing an eventual bar pass rate for black candidates of 78 percent, against 97 percent for whites. That study also showed that blacks who initially fail were more likely than whites to abandon a process requiring substantial time and money to prepare for testing. But those who do pass the bar exam on subsequent attempts, according to the law board’s report, “are, at that point, better prepared to enter the profession.” In response to concerns raised last fall by the State Bar, the law board said in a letter last month that much of its motivation was due to “significant anecdotal evidence of incompetence in the profession.” The letter further claimed that the “expanding workload of the grievance committees and boards of professional discipline also suggests that lawyer competence may be on the decline.” Professor Lawrence M. Grosberg of New York Law School strongly disagreed with those assertions. “There’s no demonstration that there are a whole lot of incompetents walking around,” said Grosberg, chair of the City Bar’s Committee on Legal Education and Admission to the Bar. “The Board of Law Examiners sort of marches to its own drummer.” A 20-page report freshly released by Grosberg’s committee further stated his case: “[W]e join the Board in recognizing that any change in New York’s standard for licensure should be rooted in ‘scientifically based studies informing our policy judgments’ … It is because we agree with the Board that there should be both careful scientific analysis and a full consideration of competing policy concerns that this Committee urges that no change be made in the passing score until both its effectiveness in meeting the goals of the Board and its ramifications … We believe that the Board’s proposal is likely to have a disparate impact on minority candidates, reduce the availability of legal representation to already underserved persons and discriminate among candidates on the basis of financial means — all without a sound basis for expecting that the proposed change will be useful in screening candidates for entry-level competence to practice law.” The City Bar report added, “[W]e believe that there has been no showing, in the [law board] Report … that the current passing score has resulted in the licensing of incompetent lawyers or that setting a higher passing score will protect the public from incompetent lawyers.” HOUSE OF DELEGATES ACTION Last month during its meetings in Manhattan, the State Bar’s House of Delegates called on the Court of Appeals — which must ultimately decide the law board’s proposal — to postpone increasing the bar exam passing grade. Delegates expressed doubts that a higher pass score would serve to raise professional competency levels. They were also concerned about possible disproportionate effects on minorities. After lengthy debate, the House of Delegates voted by a 2-to-1 margin for further study. The City Bar committee report went a bit further. “We urge the Board to withdraw its proposal … Should the Board decide not to withdraw its recommendation, we respectfully urge the Court of Appeals to reject the recommendation. At the very least, we request that the Board defer its proposal pending further review.” Grosberg noted that his committee’s report also requested the law board to directly involve the Court of Appeals in this month’s public hearings, a move that could delay consideration. He said that he had not heard an answer. Nancy O. Carpenter, executive director of the law board, said last week that the hearings would proceed on schedule. E. Leo Milonas, president of the City Bar and a December addition to the five-member law board, referred questions to Diane F. Bosse, chair of the law board. Bosse, a partner in the Buffalo firm Volgenau & Bosse, was not available for comment. In challenging the logic of Klein’s research underpinning the law board report, the City Bar report consulted with quantitative psychologist Jerard Kehoe, Ph.D., associate editor of the Journal of Applied Psychology. Klein’s findings were fundamentally flawed, according to Kehoe’s review, because they employed “a methodological tactic which effectively predetermines the result, without first establishing a definition of ‘minimum competence’ … If the Board were to accept Dr. Klein’s rationale for recommending a higher passing score, it would be endorsing a passing score without knowing whether the score is proposed based on the method most consistent with its own policies … In such circumstances, the Board would be allowing a methodological assumption to dictate new policy.” But in issuing its March report, the law board made use of its own experts to corroborate Klein’s findings — notably Professor William A. Mehrens of Michigan State University, an educational psychologist. “The study by Dr. Klein was well conceptualized and well conducted,” wrote Mehrens in an appendage to the law board’s report. “I believe it can serve as a solid basis for … considerations regarding whether to set a new standard or reaffirm the old one. Clearly, the Klein study would suggest … the standard should be higher than the current standing.” MINORITY CANDIDATES So far as potential disadvantage to minority candidates facing a higher passing grade, the law board report stated, “Dr. Klein has suggested that such information cannot be meaningfully gathered without increasing the score and studying its effect because we do not know how schools and students will respond to the change.” The City Bar report took note of an earlier report on the question of bar exams commissioned by the Court of Appeals a decade ago. According to that report, “A licensure examination is not an employment examination, nor have any inferences about degrees of success for those who score above the cut score been validated.” Grosberg expressed some weariness with the welter of studies and contradictions by experts. “From a broader perspective, I would suggest that the energy being spent on this issue [by the law board] might be better spent on collecting data on better ways to assess lawyers,” he said, suggesting that a broader range of attorney skill sets should be rated. The bulk of the present state bar exam is based on rote memory of black letter law. Grosberg added, “We encourage the Board of Law Examiners to get beyond where they are right now and look at new and innovative ways to assess competence. Rather than moving in that direction, they’re spending enormous resources in the other direction.”

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