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Over strong objections from Florida law school deans and the local NAACP, the Florida Supreme Court has approved a proposal to increase the passing score on the Florida bar exam by five points. The current passing score on the two-part exam is 131 out of a possible 200 points. Under Florida Bar rules released Thursday by the supreme court, the minimum passing score will increase to 133 immediately and will be bumped up to 136 by March 2004. The Florida bar exam is administered twice a year, in February and July. The rule will affect those who take the test in July. But it remains unclear whether the new passing score will apply to those who took the exam last month, said Kathryn Ressel, executive director of the Florida Board of Bar Examiners. Ressel said she has filed an emergency motion for clarification with the supreme court. The supreme court’s 4-3 ruling comes after years of debate over whether raising the passing score would reduce the number of licensed minority attorneys in Florida and whether it is necessary for ensuring greater competency among lawyers practicing in the state. In a footnote to the majority opinion, Justice R. Fred Lewis noted that 33 states now have higher passing standards than Florida and that the state’s requirement is three points lower than the national average. Writing on behalf of the majority, Lewis was joined by Chief Justice Harry Lee Anstead, Justice Charles Wells and now-retired Justice Major B. Harding. The majority rejected the argument that increasing the passing score would reduce the number of minority lawyers admitted to the bar in Florida. “The only people disadvantaged by an increase in the pass/fail line would be those who are not qualified to become practicing members of the Florida Bar in the first place — which crosses all populations equally,” the majority said. The two black members of the court, Justice Peggy Ann Quince and now-retired Justice Leander J. Shaw Jr., dissented from the opinion, as did Justice Barbara J. Pariente. Justices Raoul Cantero III and Kenneth B. Bell did not participate in the opinion. Writing for the dissent, Pariente said she could not agree with the majority’s “hypothetical” conclusion that the score increase would have no adverse racial impact absent any studies showing how the new rule would affect minority applicants. Joseph Harbaugh, dean of Nova Southeastern University’s law school, agreed. “If the goal is to continue to diversify a profession in Florida that is about 90 percent white, increasing the score on the bar exam is unlikely to achieve that goal,” he said. The Florida chapter of the National Bar Association, the nation’s largest association for black lawyers, attacked the methodology of the studies on which the rule change was based and criticized the Florida Supreme Court for basing its decision on a flawed analysis. “There’s nothing wrong with doing an assessment of the current scoring,” said Thomasina Williams of Williams Associates in Miami, who wrote the National Bar Association’s brief to the Florida Supreme Court. “All we’re saying is that if you want to do an evaluation, let’s do an honest evaluation.” CONFLICT WITH DIVERSITY EFFORTS? According to recent Florida Bar statistics, 90 percent of the state’s lawyers are white, 7 percent are Hispanic, 2 percent are black and 1 percent are classified as other. Overall, minorities make up about 30 percent of Florida’s population, but just 8 percent of Florida Bar members. Given the disparity, Florida law school deans and Florida Bar officials have proposed measures in recent years to provide more economic assistance to minorities seeking admission to law school and grants to pay for bar exam review courses. Two years ago, the Florida Legislature also created two new, publicly funded law schools, at Florida A&M University and Florida International University, for the purpose of training more minority lawyers. A major hurdle in increasing the number of minority law students and attorneys, the deans and Bar officials say, is that minorities tend to score lower on standardized tests such as the SAT and other entrance exams. Many experts have blamed the discrepancy on cultural biases they say are inherent in the exams. According to a 1998 nationwide study conducted by the Law School Admissions Council, white applicants had a 30 percent higher passage rate than black students. According to the study, which tracked more than 27,000 law students enrolled in schools accredited by the American Bar Association, 92 percent of the white students passed their first bar exam, followed by 75 percent of Hispanic students and 61 percent of blacks. Based on such studies, the deans of five Florida law schools, including Florida Coastal in Jacksonville, Stetson University in St. Petersburg, St. Thomas University, the University of Florida and University of Miami, joined Harbaugh in opposing the new rule. “Standardized testing has a significantly different impact on minority students,” Harbaugh said. In their brief to the supreme court, the deans argued that there was no evidence to suggest that raising the score would lead to higher proficiency and performance among the lawyers admitted to the state Bar. “A score of 131 has been an appropriate standard for lawyers for the past 20 years,” Harbaugh said. “Are we suggesting that those lawyers who scored between 131 and 136 are incompetent?” TESTING THE TEST The Florida bar exam consists of a general examination and the Multistate Professional Responsibility Examination. The general bar exam is a two-part examination. Previously, Florida applicants could pass by scoring a 131 or better on each part, or by earning a combined score of 131 when the two parts were averaged together. Part A consists of three essay questions and 100 multiple choice questions on Florida law, including contracts, rules of civil and criminal procedure, family law and trust and wills. Part B consists of the Multistate Bar Examination, a multiple-choice standardized exam that predominantly tests knowledge of English common law and federal rules of evidence. The Multistate Professional Responsibility Examination, which is taken independently of the general bar exam, tests applicants on attorney ethics and has a different scoring scale. The supreme court decided to increase the passing score on the general exam to 136 based on an analysis conducted by Stephen Klein, a nationally recognized expert on the psychometric characteristics of bar examinations. In the first of two studies, Klein had graders of the essay portion of Florida’s general exam assign passing scores to particular essay responses on the February and July 1999 Florida bar exams. Based on an average of the graders’ assessments, Klein calculated that an average score of 133.5 would have been an appropriate passing rate for the February 1999 exam. Using the same criteria, Klein determined that the proper passing score on the July 1999 exam was 141. In a second study, Klein created six panels, each comprising a circuit court judge, an associate law school dean or professor, a Board of Bar Examiners member and a practicing lawyer. These groups then analyzed 40 exam answers and assigned each answer with a pass or fail rating. After analysis, Klein determined that the proper passing score was 139.5 for the July 1998 exam and 135 for the February 1999 exam. Based on this report, the Board of Bar Examiners in October 1999 voted 12-2 in favor of increasing the passing score. “The studies produced an explicit call to elevate the standard for admission to the Bar in an attempt to protect the public from possible exposure to harm created by incompetent attorneys,” the supreme court majority wrote in its March 20 decision. ‘NUMBER PICKED FROM THE AIR’ In laying out the court’s rationale, Lewis recounted the history of bar exam score requirements in Florida. Prior to 1961, an applicant was required to answer 70 percent of the questions correctly in order to pass. After 1961, the passing score was determined by averaging the top 10 scores on each exam and subtracting 20 points from the average score. In 1981, the supreme court adopted a pass/fail score of 133, a level not justified by any empirical studies or verifiable standards, Lewis wrote. Then, in 1982, the high court reduced the passing score to 131 “without any explanation,” Lewis said. To obtain a score of 131, applicants must answer 56 percent of the questions correctly. “The present standard at this time is invalid and totally without foundation,” Lewis wrote. “It is nothing more than a number picked from the air.” Studies by the National Board of Bar Examiners show that in the past five years, Florida has had a passage rate of roughly 70 percent. This figure is in line with percentages from states with roughly the same number of people who take the bar exam each year, such as Illinois, Massachusetts and Texas. Those states have had average annual passing rates of 69 percent to 76 percent. Western states such as California and Nevada, which have higher passing standards, however, have had significantly lower average annual passing rates — ranging from 50 percent to 64 percent. The national passing average is 66 percent. Robert Feinberg, president of PMBR, a Santa Monica and New York-based organization that conducts the nation’s largest multistate exam review courses, said Florida’s new rule is in line with a nationwide trend toward increasing passing scores. In New York, for example, there is a proposal now pending before the New York Supreme Court to increase the minimum score from 132 to 136. Five years ago, Illinois increased its passing score from 126 to 132, Feinberg said. “A score of 131 is low,” Feinberg said. “What Florida is doing is following what’s happening across the country.” But the Florida chapter of the National Bar Association, the nation’s largest association for black lawyers, attacked Klein’s study on Florida’s bar exam scoring standards because it only evaluated the essay portion of the general exam, which is only a quarter of the exam. In doing so, the study ignored the multiple choice portion of the general bar examination, a significant part of test. The association also criticized the fact that the scores the graders proposed during the study were subjective and not based on a model of what elements should be included for a passing grade. Harley Herman, a partner at de Beaubien Knight Simmons Mantzaris & Neal in Orlando, argued against the score increase on behalf of the Florida State Conference of NAACP Branches. Herman criticized the Florida bar exam for testing applicants on highly theoretical legal issues rather than measuring a general aptitude for practicing law. Testing on anything other than what is directly required to perform a particular job is a violation of Title VII of the federal Civil Rights Act, Herman said. “Writing an essay is not the same thing as writing a court brief or knowing what questions to ask in arguing a case,” Herman said. “If it was a question of competency, I would say fine, we have some work to do. But we’re only testing a person’s test taking ability based on exams created for white individuals.” The three dissenting justices disagreed with raising the exam passing score for many of same reasons given by the law school deans and NAACP representatives. In her dissent, Pariente rejected the majority’s opinion for three reasons. She said there was no indication that increasing the score would lead to higher attorney performance, the court had placed too much emphasis on Klein’s questionable methodology and the increase could have an adverse effect on minorities. “I see no indication that changing the passing score from 131 to 136 is necessary to ensure that new lawyers are minimally qualified,” Pariente wrote.

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