Under pressure from the U.S. Department of Education, the American Bar Association has proposed to tighten bar passage requirements for law schools, a change that is drawing a sharp rebuke from deans and others who claim that it would create an unfair standard for accreditation and result in an administrative mess.

The proposal would draw a bright-line standard regarding the responsibility of law schools to graduate students who are capable of passing the bar.

The ABA, which receives its authority to accredit law schools from the U.S. Department of Education, asserts that the revised standard is necessary to protect consumers who are considering attending law school and consumers who use the legal services of those who graduate.

Many in legal education say that they see the need for a standard that is more precise in measuring bar passage rates, but they assert that the current proposal is deeply flawed.

“It’s just going to be chaos,” said Richard Matasar, dean of New York Law School.

A member of the board of directors for the American Law Deans Association, Matasar has drafted an opposition letter that board members are expected to sign in the next few days. In addition, Washburn University School of Law Professor William Rich, who just ended a term as the school’s interim dean, is gathering signatures from about 20 deans for an opposition letter that will go to the ABA on July 9.

For schools already accredited but undergoing a periodic review, the proposal would require them to meet one of two criteria. Under the first, they would need to show that in at least three of the most recent five years, first-time test takers passed at no more than 10 points below the first-time bar passage rates for graduates of other accredited law schools taking the bar in the same jurisdiction.

Also under the first criterion, schools in which more than 20% of their graduates take the bar exam for the first time in other jurisdictions would need to demonstrate that at least 70% of their first-time test takers passed during the two most recent bar-exam periods.

As an alternative to the first criterion, schools would need to demonstrate that 80% of their graduates who took the exam anywhere in the country passed within three attempts, within three years of graduation.

Goal is consistency

The purpose of the proposal is to bring consistency to the application of the ABA’s general law school accreditation rule that requires schools to maintain educational programs that prepare students for admission to the bar, said William Rakes, chairman of the ABA Section of Legal Education and Admissions to the Bar.

The ABA’s proposal initially provided that schools failing to meet the standard would trigger further review, a component that the Education Department rejected, Rakes said. Instead, schools failing to meet the passage rate will be deemed noncompliant.

Rich, at Washburn, said that law schools could face having their success measured by just a small group of students taking a bar exam outside of the school’s primary jurisdiction. He also is concerned about the accuracy and feasibility of tracking graduates’ performance.

The ABA’s attempt to revise the standard is part of its bid to the Department of Education to remain as the accrediting body for law schools. Last month, the Department of Education extended the ABA’s power to continue accrediting for only 18 months, instead of a five-year term that it received in the past.

The two organizations have butted heads, in part, because of the disagreement over the ABA’s diversity rule � Standard 212 � which the ABA revised at its annual conference last summer. The standard requires law schools to demonstrate by “concrete action” that they are seeking to admit minority students. Opponents assert that the requirement is unlawful.

In a June 20 letter to the ABA, U.S. Secretary of Education Margaret Spellings wrote that her concerns about its accrediting authority were “far beyond any concerns about Standard 212.” The Department of Education declined to comment for this story.

The bar pass rate provision will go to the ABA House of Delegates for a vote at its annual conference in August.