Earlier this month, those who sat for the February bar exam in California received their results, and they weren’t pretty. Only 31% passed. For first-time takers who were graduates of ABA-accredited law schools in California, the pass rate was 45%. California (which, together with New York, has more bar applicants than any other state) has the second-highest cut score in the nation, after tiny Delaware.
Though California bar takers, on average, perform better than their counterparts elsewhere on the multistate bar exam (MBE), a far greater number fail as a direct consequence of California’s exceptionally high cut score.
The February bar results were in no way aberrational. The passage rate on the July 2018 bar exam was just 40%, with only 54% of first-time takers passing, an historic low and even worse than the previous historic low of 56% in July 2016. On those July exams, more than one-third of first-time takers from California law schools accredited under ABA standards failed. In New York, by contrast, 83% of students from ABA-accredited schools passed the July exam in both those years.
California Supreme Court Chief Justice Tani Cantil-Sakauye recently called these distressingly high failure rates “frightening.” Yet while there is a near consensus that these dismal results are problematic, there is little agreement about what can or should be done about them.
The best path forward is for the California Supreme Court to appoint—as soon as is practicable—an independent, blue-ribbon task force to study the cut score issue and make its recommendations within six or nine months. Such a task force should bring together leaders from the bench, bar and law schools to assess the cut score and licensure issues expeditiously, thoughtfully and holistically.
The issue has even more urgency because California’s exceptionally high cut score has dramatic and adverse effects on the diversity of our state’s lawyers. The data show that a disproportionate number of California test takers from underrepresented groups turn out to be “near misses,” achieving scores that would have been sufficient to qualify for admission in nearly every other state, including New York.
For both the 2016 and 2018 July bar exams, if California’s cut score had been set at the national median, more than twice as many African American takers would have passed and become members of the bar. This disparate impact is also suffered by Latino and Asian test takers, though to a lesser extent. By the admissions standards that prevail across the United States, these candidates from groups seriously underrepresented in the legal profession are fully qualified to practice law; only California’s cut score disqualifies them from being lawyers in our state, the most diverse in the country.
The high cut score also affects California’s ability to compete in the national market for top legal talent. Legal employers recruit highly qualified and experienced lawyers from other states only to see them fail the California bar exam at indefensible rates. The February 2019 pass rate on the attorney exam, available only to those with at least four years of practice experience in another state, was a dismal 46.6%. We hear all-too-frequent anecdotes about highly recruited lawyers in elite positions elsewhere accepting positions in California only to fail the bar.
On the very same day that the California February bar exam results were released, the American Bar Association (ABA) passed a new law school accreditation rule, under consideration for several years, requiring at least 75% of a law school’s graduates to pass the bar within two years of graduation. While this new standard will pose a challenge to some law schools across the country, the greatest impact will be here in California, not because our law schools’ graduates are less qualified, but simply because of our exceptionally high cut score.
The California Supreme Court has already taken an initial look at the cut score issue and has indicated that it would be willing to do so again. In early 2017, deans of nearly all of California’s ABA-accredited schools jointly called upon the court to adjust the score to align with the vast majority of other states. At that time and pursuant to the court’s request, the California State Bar had commissioned several studies of the bar exam. By October 2017, only one of those studies had been completed, and the court decided that more research was needed. A second study—one in which we and other schools actively participated—was completed in December 2018. The third and final study planned is now underway.
The bar exam is certainly understudied and we welcome and applaud these efforts to learn more. But unfortunately, these studies will not, by themselves, provide persuasive guidance to determine what the right cut score is, nor on why pass rates have been plummeting. The first study did aim to assess the correct “standard” for the bar cut score, but its methodological flaws were sufficiently glaring that it provided no valid or persuasive answers.
The second study showed, contrary to what many had believed, that changes in the academic quality of students being admitted to law school explained only a modest portion—likely less than a third—of the significant decline in bar passage in recent years. The study found that much of the bar passage decline could not be explained by any of the factors it examined.
The third study, now being designed by the state bar, will survey California’s lawyers about their practices and their actual daily tasks. This will likely provide useful information on what subjects and skills ought to be tested on the bar exam, but the study will not—and given its design cannot—help in determining what the cut score should be.
The chief justice recently indicated that the court will return to the cut score issue when the bar-commissioned studies are completed. However, while we believe that research efforts are worthwhile, we see no justification for waiting for the final study to be completed before addressing the critical issue of the cut score, given that final study’s lack of any direct connection to the cut score issue.
If, as appears to be the case, the court is not yet prepared to act without more information, we believe that it should rely on the broad, holistic assessment of the issue that a blue ribbon panel could provide.
In recent years, several other major states, including Texas, New York, Indiana and Ohio, have convened independent commissions to study their licensing standards. Consistent with what has been done in those states, we recommend that a task force include members of the judiciary, including the Supreme Court, practicing attorneys and law firm leaders, representatives from the state bar and affinity bars, as well as law school deans. We believe that such a commission would be well qualified to assess the question of the cut score and to make an informed recommendation for what cut score is appropriate for California. If appointed this summer, the task force should aim to make its recommendations by early spring 2020, when the state bar’s practice analysis study is expected to be completed.
A task force might usefully consider other aspects of state licensure as well, including the pros and cons to joining 35 other jurisdictions in opting for the Uniform Bar Exam. But it should turn first, and with all due speed, to the critical issue of the cut score and what would be best for our state, the profession and the public.
California rightly prides itself as a national leader in so many domains. We proudly celebrate our commitment to diversity, inclusion and guarantees of fundamental fairness, as well as our state’s embrace of innovation and creativity. And yet the state bar exam has not meaningfully changed since the days of the Sony Walkman and the VCR. We may not yet have consensus about the best solution going forward, but the current exam’s dismal pass rates and the elevated cut score’s disparate impacts on minority candidates should deeply concern us all. The time has come to establish a task force to address this pressing issue.
Jennifer L. Mnookin is the dean and David G. Price & Dallas P. Price professor of law at UCLA School of Law.
Stephen C. Ferruolo is dean and professor of law at University of San Diego School of Law.
David L. Faigman is chancellor & dean and John F. Digardi distinguished professor of Law at UC Hastings Law in San Francisco.