American Bar Association in Chicago (Photo: Diego M. Radzinschi/ALM)

The third time could be the charm for a long-debated proposal to strengthen the bar standard law schools must meet in order to be accredited by the American Bar Association.

The proposal has already been rejected twice by the ABA’s House of Delegates—most recently last month. But the organization’s Council of the Section of Legal Education and Admissions to the Bar is poised to take the matter up yet again Friday when it meets in Marina del Rey, California. This time, the 21-member council has the ability to adopt the changes without the approval of the larger House of Delegates.

Under the proposed new standard, at least 75 percent of a school’s graduates must pass the bar exam within two years of leaving campus, or the school risks losing its accreditation. Currently, schools have five years to meet that 75 percent threshold.

The proposal also eliminates the provision under which schools can meet the standard if their first-time bar pass rate is within 15 percent of the average in their jurisdiction. Critics say that make little sense in states where there are just one or two law schools. Additionally, the proposed standard would allow schools to report bar pass data on all their graduates, as opposed to a minimum of 70 percent, as they do now.

Should the council vote to adopt the proposal, it would end more than five years of intense debate over the rule. Supporters of the change, including the National Conference of Bar Examiners, have argued that the current rule is too complex and too accommodating to law schools with poor bar exam outcomes and that a stricter standard is needed to protect law students. But diversity advocates have consistently lined up in opposition, saying the proposed change would disproportionately impact schools with higher minority enrollment. (The ABA has said its own data refutes that claim.) The standard is up for discussion, though it’s not clear whether the council will reach a final decision on the matter.

In anticipation of this week’s meeting in California, a consortium of a dozen diversity and legal education entities Feb. 20 sent a letter to the council, asking it not to adopt the new standard and commence a new examination of the issue, “involving stakeholders in a thorough, transparent, and inclusive discussion of the goals of and implementation concerns,” of any change to the bar pass rule. Among the signatories are eight entities within the ABA focused on diversity and young lawyers, as well at the Hispanic National Bar Association, the Society of American Law Teachers, the Clinical Legal Education Association and a cohort of deans from five law schools at Historically Black Colleges and Universities.

“The overwhelming negative vote of the House of Delegates and strong opposition of so many sections and colleagues indicate that more work and dialogue are needed before action is taken,” the letter reads. “We implore the council to act with restraint and care.”

Barry Currier, the ABA’s managing director for accreditation, was not available for comment on the matter Thursday morning. But he said last month that most law students aspire to become practicing attorneys and that schools have an obligation to help them down that path.

“Becoming a lawyer requires passing the bar exam,” he said. “How well a school’s graduates perform on the bar exam is a very important accreditation tool to assess a law school’s program of legal education.”

Separately, SALT and CLEA wrote to the council this week to call for more transparency in its process of revising the law school accreditation standards and asked it to allow more opportunities for interested parties to participate. Specifically, the groups say the recent dissolution of the ABA’s Standards Review Committee has eliminated an important avenue for people to weigh in on proposed changes. (The work of that committee was folded into the council last year in an effort to streamline the standards revision process and save money.) Their letter alleges that much of the council’s discussion about the proposed new bar pass standard over the past year occurred behind closed doors, rather than in open sessions.

“On a practical level, more open and collaborative processes, although sometimes harder to manage, result in much better and much better accepted outcomes, the two groups wrote. “We urge the council to address the ABA standards and other matters of great concern to constituents during open sessions and make it a practice to hear and collaborate with concerned constituents.”

The council has been considering a tighter bar pass standard since 2013, and the idea has run into opposition from diversity advocates since the start. (The proposal has morphed over time. Initially, the ABA was considering an 80-percent minimum pass rate.)

The bar exam picture has changed radically since 2013, however. Pass rates have plummeted in many jurisdictions, prompting concern that schools are admitting unqualified students. Fewer than 41 percent of those who sat for the California bar exam in July passed. The pass rate was 63 percent in New York. The varying bar exam cut scores across jurisdictions are one reason opponents say the proposed change needs further consideration.

The bar pass proposal was initially rejected by the ABA House of Delegates in 2017, when opponents argued that better data was necessary to gauge how the change would impact law schools. The legal education section then collected and released data on the so-called “ultimate bar pass rate,” which showed how law schools would have fared under the proposal for the class of 2015. The ultimate bar pass rate calculates the percentage of a school’s graduates who passed the bar within two years of leaving campus.

According to the ABA’s data, more than 88 percent of 2015 graduates passed the bar within two years, and 19 of the 202 accredited law schools did not meet the 75 percent pass threshold. That figure includes two schools in Puerto Rico and three other campuses that are slated to close. That data led the council to conclude that the proposal would not disproportionately impact schools with high minority enrollment.