A fight over a controversial proposal to toughen law school accreditation standards regarding bar exam pass rates is headed for round two.

Although it failed earlier this year in the effort, the nation’s accrediting body for law schools, the American Bar Association Council of the Section of Legal Education and Admissions to the Bar, is expected to try again at its meeting from Nov. 2 to 4 in Boston with a proposal to require law schools to have at least 75 percent of their graduates pass the bar within two years of graduation.

The debate over the rule comes at a time when schools are under pressure due to falling bar pass rates, mounting student debt, and a tight legal job market. The ABA’s legal education council has faced criticism for being too lenient and the new bar pass rule was supposed to show the council is trying to protect the consumer interests of students. The council has also cracked down on some law schools.

This week, it sent Florida Coastal School of Law, which had a 47.7 percent bar pass rate, a letter warning it was significantly out of compliance with standards. In March, it put Arizona Summit School of Law on probation for having a 25 percent bar passage rate among July 2016 test-takers, among other things. In addition, the ABA has sent noncompliance letters, for a variety of reasons, to seven other schools this year, including Atlanta’s John Marshall School of Law, Texas Southern University Thurgood Marshall School of Law, Thomas Jefferson School of Law and SUNY Buffalo School of Law, according to Paul Caron, editor of TaxProf Blog

The current ABA rule gives schools up to five years to reach 75 percent passage, while also providing alternatives if they can’t meet the requirement.

The legal education council, which has debated the idea for years, approved the harder rule last year, but in February, the ABA’s House of Delegates rejected the measure, sending it back to the council.

The debate on the bar pass rule involved supporters who say the change would prevent law schools from admitting students who can’t pass the bar. Critics argued it would discourage law schools from admitting minority students who are statistically disadvantaged on standardized tests. Others feared how the harder rule might impact schools in California, because the state has a high minimum bar-pass score and has seen declining passage rates in recent years.

Despite the House’s rejection, the legal education council decided in June it wouldn’t change its proposal. Instead, it conducted a survey to gather information about the House’s concerns, said an Oct. 20 memo by section managing director Barry Currier, who didn’t return a call seeking comment.

Among the 204 ABA-accredited U.S. law schools, 92 responded to the voluntary survey. Currier wrote that each of the 92 schools reported bar passage rates for the past two years, which gave the council 184 data points to consider. Only three of the 184 data points were below the 75 percent bar passage standard. Two-thirds of the schools reported that at least 95 percent of graduates had taken the bar exam within the two-year window allowed in the proposed bar pass rule. About half of California’s law schools, and several law schools at historically black colleges or universities, participated in the survey.

Currier wrote in the memo that survey data didn’t bear out the claims, debated in the House, that the tougher bar pass rule would negatively impact schools in California or schools that serve minorities.

Currier, in his memo, identified two possibilities for what the council might do during its meeting on Friday. First, the council might confirm that it still supports the tougher bar pass rule and send it back to the House in February 2018. The council could also keep studying the idea and send it to the House again in August 2018.

It could still become effective even if the house rejects it again. Under ABA rules, the House can twice reject a resolution from the legal education council, but the council itself has the ultimate say over accreditation standards. Thus, if the House issues another rejection, the council could still adopt the measure.

Alternatively, the council at Friday’s meeting might decide to send the bar pass rule back to its standards review committee for more work to address the House’s concerns and the bar pass survey. Another idea would be to scrap the entire revision, and keep the current bar pass rule in place.

Admissions Tests

The legal education council on Friday will also discuss changing another accreditation standard dealing with admissions tests.

Right now, the admissions test rule in Standard 503 requires schools to give applicants a “valid and reliable” admissions test, which is supposed to help evaluate whether the applicant is capable of graduating the school and passing the bar exam. Most schools use the Law School Admissions Test, but a handful of law schools have begun to use the Graduate Record Examination. They include the University of Arizona School of Law, Harvard Law School, Columbia Law School and the University of Hawaii School of Law.

Educational Testing Service, which develops and administers the GRE, this week released the results of a study about the validity of the GRE for law school admissions. Working with 21 law schools, ETS, not surprisingly, found that performance on the GRE is a valid predictor of first-year law school grades.

Kellye Testy, president and CEO of the Law School Admission Council, which develops the LSAT, said Wednesday that while she supports the use of an alternative test on a small scale, she’s concerned about the limitations of studies pertaining to the GRE’s validity in predicting success in law school.

Back in March, the council put out a revision for public comment, which would eliminate individual schools’ ability to determine for themselves if an admissions test is valid and reliable. Instead, if a school wanted something other than the LSAT, the legal education council would decide if the alternative test was valid and reliable. Testy supports that plan.

The council received nine written comments to the proposal and three testing entities testified at a public hearing. Opponents to eliminating schools’ ability to determine for themselves if an admissions test is valid, which include a number of law schools or their deans, said the change would impede law schools’ innovation and their efforts to enroll diverse students. It also ran counter to the council’s recent focus on judging law schools based on whether their law graduates passed the bar and found jobs, said critics.

The council’s standards review committee, in the end, offered up three options for the council to choose from at the meeting on Friday. All three options start out by scrapping the current proposal and starting over with public comments.

Under the first option, overwhelmingly favored by the standards review committee, the legal education council would completely delete the rule that requires law schools to use admissions tests. However, a different rule would still require schools to make sure that applicants appeared capable of graduating and passing the bar. They would still need to follow sound admissions practices. To determine if schools were living up to that, the ABA still would look at schools’ admissions test data. Most schools would still administer a test—even if the rules technically didn’t force it—however, schools themselves would decide which test to use, without the burden of judging whether it was “valid and reliable.”

Under a second option, the admissions test rule would remain on the books, but the council would delete the need for a test to be “valid and reliable.” Neither schools nor the legal education council would be tasked with judging if tests were valid and reliable. Most schools, probably, would still choose the LSAT or GRE.

The third option would also keep the admission test rule, but it would give the council would the duty to determine if a test—LSAT or any other—were valid and reliable.

Once the council chooses which option to adopt, it would put the proposal out for another round of public comments.


Follow Angela Morris on Twitter: @AMorrisReports