The American Bar Association’s bar passage-rate requirement for law schools may soon become more straightforward but harder to meet.
The ABA committee revising the law school accreditation standards is poised to endorse a new rule that would require at least 80 percent of a school’s graduates to pass the bar within two years of graduation—an increase from 75 percent within five years.
Graduates would have at least five shots at passing the test to help their alma maters meet the 80 percent requirement.
The details might yet change, but there is widespread support for clarifying and strengthening the standard, said committee chairman Jeffrey Lewis, a professor at Saint Louis University School of Law. "I think it’s fair to say that there is consensus that the current interpretation is meaningless and empty, and thus very misleading," he said.
Law schools, he continued, bear a fiduciary responsibility to prepare students to pass the bar exam.
The ABA’s bar passage standard has long been a source of controversy, partly due to concerns that tighter standards would dissuade law schools from accepting students with lower academic credentials, which might disproportionately shut out minority and low-income applicants.
Before 2008, the ABA spelled out no specific bar-passage minimum. Instead, it enforced what was called the "70/10 Rule": At least 70 percent of a school’s first-time bar takers had to pass the exam in the school’s home state. Alternatively, the first-time bar-pass rate could be no more than 10 percent below the average for other ABA-accredited schools in that state.
But the U.S. Department of Education—which authorizes the ABA to accredit law schools—requested a clearer rule. After much discussion, the ABA in 2008 began requiring that at least 75 percent of a school’s graduates pass the bar exam in at least three of the past five years. Schools can meet the standard if their first-time bar-passage rate is no more than 15 percent below other ABA schools in the same state during three of the past five years. The 15 percent requirement is intended to level the playing field across states, given that passage rates vary widely, depending on jurisdiction.
Committee members now believe the existing standard is too confusing, according to member Erica Moeser, president of the National Conference of Bar Examiners. "The current alternatives have led to operational complexities that have perhaps gotten in the way of regulation," she said.
Moeser does not anticipate that many schools will have a problem meeting an 80 percent threshold. Additionally, because few law graduates take the bar exam more than five times, the shortened window for bar passage should not be a problem, she said.
Lewis said the committee hopes to agree upon a new standard during its next meeting in July. Any changes would have to be approved by the ABA’s Council of the Section of Legal Education and Admissions to the Bar.
Karen Sloan is a reporter for The National Law Journal, a Legal affiliate based in New York.