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Reacting to concerns from more than two dozen lawmakers, major bar groups and academics, the New York Court of Appeals is ordering further study before a plan to boost the passing score on the bar examination is fully implemented. Critics have complained that the increase is unnecessary and that raising the cutoff point could result in fewer minorities passing. Key lawmakers received letters yesterday from Chief Judge Judith S. Kaye indicating that the Court has decided to go ahead with the first increment of a three-phase increase next month. For the July exam, the passing grade will be 665 rather than 660 (out of a possible 1,000) — as proposed by the Board of Law Examiners. However, the chief judge said in the letter that the second increase, another five-point boost slated for July 2006, would not be imposed until the effects of the first are evaluated. A third five-point increase is scheduled for July 2007. “Hopefully, the alarms will prove groundless, and our common objectives — including the advancement of minorities in the legal profession — will be achieved,” Chief Judge Kaye wrote in a letter to the state Senate Judiciary and Higher Education committees. A similar letter was sent to Assemblywoman Helene E. Weinstein, a Brooklyn Democrat who chairs the Judiciary Committee in the lower house. Lawmakers, the New York State Bar Association, deans at all of the state’s law schools and the New York State Judicial Commission on Minorities opposed the first boost in the passing bar exam score in 25 years. Led by the state bar and then-President Kenneth G. Standard, critics complained there is no evidence that increasing the passing score by 15 points, to 675, would in any way lead to more competent lawyers — and plenty of suspicion that an increase would have a disparate impact on minority law school graduates. One of Standard’s final acts as president was to establish a committee to examine relationships between the exam, professional competency, diversity in the profession and law school curricula. John J. Kenney, a partner at Simpson, Thacher & Bartlett in Manhattan, chairs the committee. Chief Judge Kaye, in her letters, generally defended the proposed increase. However, in light of the continuing controversy, she called for a further period of evaluation after the first incremental increase takes effect with next month’s exam. She also said Senior Associate Judge George Bundy Smith, the only black judge now on the Court of Appeals, would join Kenney’s committee if the state bar is agreeable. “We are distressed by the deep divisions that the subject has generated among the law schools, the Bar Association and the Bar Examiners,” Chief Judge Kaye said in her letter to the two Senate committees. “You have the Court’s assurance that we will devote ourselves to repairing the rifts, beginning with efforts to work with the newly formed State Bar Association Special Committee.” Chief Judge Kaye’s letter was prompted by letters sent to her on June 8 by Weinstein and on June 10 by Senate Judiciary Committee Chairman John A. DeFrancisco, R-Syracuse, and Senate Higher Education Committee Chairman Kenneth P. LaValle, R-Suffolk. The Senate letter resulted from a joint hearing held by the Higher Education and Judiciary committees on May 23, when scores of witnesses questioned what, if any, positive result would be achieved by boosting the cutoff score on the bar exam. “What is clear from the testimony presented, is the need for further study of this issue,” LaValle and DeFrancisco said in a letter signed by the members of their respective committees. “The Board of [Law] Examiners, for example, claim that increasing the passing score was necessary to ensure professional competency, particularly for newly admitted sole and small firm practitioners. However, they were unable to produce data supporting this claim.” Weinstein, in her letter, said, “It is likely this [increase in the passing score] will have a disparate impact on minority law school graduates.” Chief Judge Kaye observed that the Board of Law Examiners’ proposal resulted from a three-year study and public hearings statewide. PASSING GRADE HIKE ‘MODEST’ The chief judge described the increase as “modest,” noted that it is only half that recommended by an expert who conducted a study for the Law Examiners and observed that the passing score in New York is among the lowest in the country. She said further study is already under way, noting that every applicant for next month’s test was sent a “voluntary demographic information form” so officials can further assess the impact on minorities. About 8,300 completed responses have been received to date, she said. “The expectation is there will be new, solid data against which to measure the impact of the minimally increased standard, and we trust the law schools will cooperate in this process,” Chief Judge Kaye wrote. Kenney, chairman of the Bar Association committee, said his panel’s focus is broad, adding that the proposed increase in the passing score is only one component of its inquiry. “We are looking at the concept of the bar exam and lawyer competency in general,” Kenney said. The brouhaha over the bar exam score erupted after the New York Law Journal published a brief item last September reporting that the Board of Law Examiners had asked the Court of Appeals to raise the bar on the test of lawyer competency. Bar leaders and law school deans expressed outrage that they were not forewarned, and many questioned the methodology of the study prompting the proposed increase. That study was conducted by clinical psychologist Stephen P. Klein, whose work has come under criticism in Florida and Minnesota and whose study was harshly challenged in reports by the Association of the Bar of the City of New York and the state bar group. At the May 23 hearing convened by the Senate committees, witnesses expressed concern that Klein’s research generally applied to bar exams nationwide rather than specifically to New York, DeFrancisco said yesterday. “There was concern over the methodology, and some of the questions asked dealt with the data the Board of Law Examiners used in making their conclusions,” DeFrancisco said. “Much of it was national data rather than data concerning New York state alone. DeFrancisco said he agrees with Chief Judge Kaye’s call for further study before the second increase is phased in. “I think it is a reasonable step,” he said. “To hold up the balance of the increases until there is an analysis of the data they are gathering makes a lot of sense. To me, it was difficult to justify in my mind gathering data after the fact.”

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