California state bar trustees on Wednesday punted the fate of the bar exam pass score to the California Supreme Court, offering the justices a range of choices on the controversial issue, from leaving the score at 144 to lowering it to 139.
The trustees’ 6-5 vote endorsing the range reflected the contentious nature surrounding the pass score, or cut score. California law school deans, which have seen their students’ pass rates plummet in recent years, have pleaded with the bar and the Supreme Court reduce the cut score—now the second highest in the nation behind Delaware—to as low as 135. The Committee of Bar Examiners, however, endorsed maintaining the 144 score while additional studies are completed.
At a hearing Wednesday in Los Angeles, outgoing bar executive director Elizabeth Rindskopf Parker said the agency had “done as much as we can do” analyzing the issue for now, noting that the two remaining studies on the exam won’t be completed in the short term.
The high court “will have pretty much all we can do for them in response to their request,” Parker said. “This is policy above our pay grade, I would suggest. This is something for the court to resolve.”
Following complaints about the cut score from deans and a legislative hearing on the issue, the Supreme Court in February asked the bar to study whether 144 remained the appropriate benchmark for passage and to make recommendations for changes, if any, by Dec. 1.
A bar-commissioned study released in July concluded that the agency could lower the cut score to 141 and still ensure that those who pass the exam meet minimum competency standards to practice law. After receiving thousands of public comments on the study and its findings, bar staff proposed reducing the pass score to 139 as a third option. That mark, bar staff wrote, still falls within the statistical margin of error of setting the correct cut score.
The debate over the score has raised a number of hotly debated, related issues, including whether the exam hinders ethnic diversity in the bar and whether a lower score would flood the market with new lawyers unable to find work. Bar leaders on Wednesday suggested temporarily setting aside those issues while making a recommendation to the Supreme Court.
“What we would be doing is providing justification for the court to come to what it considers the appropriate solution to the problem,” said board president James Fox. “In terms of making a specific solitary recommendation, I’m not sure that would be serving the court as well as providing the justification for the range.”
The justices of the California Supreme Court have not said when they expect to make a decision on what the cut score should be.