The California Supreme Court announced Wednesday afternoon that it would not change the passing score on the state’s bar exam.
The decision came despite calls from across academia to lower the so-called “cut” score, the nation’s second-highest behind only Delaware. The Law School Admission Council Inc., a California State Bar committee stocked with law school deans, recommended in August that the Supreme Court reduce the bar exam passing score by up to 6.25 percent.
In Wednesday’s letter announcing the decision, California’s supreme court justices called on the state bar and law school deans to work together to determine what, if any, portions of the state’s bar exam should be modified. In the wake of the court decision, The Recorder reached out to law school deans across the state to get their reactions to the Supreme Court’s move—or perhaps more accurately lack thereof—and suggestions for next steps.
Responses have been edited for length and clarity.
Jennifer Mnookin, UCLA
I’m deeply disappointed by the court’s decision not to support an interim change to the cut score. There’s no evidence that California’s current, atypically high cut score produces better lawyers. I, and virtually all my fellow law deans, strongly believe that the current cut score hurts California law students, the diversity of California’s lawyers, and that it has far more costs than benefits to our state as a whole. I’m sorry that the court didn’t reach a similar decision.
It is absolutely critical to emphasize that our responsibility is not to teach to the test; it is to develop lawyers and leaders in the law. The bar is only one piece of that training, and it’s certainly not the only important one. One of the problems with the unjustifiably high cut score is that it risks making the bar exam too much of a direct focus for legal education.
Just Tuesday, I was speaking with a group of successful lawyers who were complaining that law students sometimes take too many so-called “bar courses” at the expense of other courses that would actually be more valuable to them in the real world of law practice. The too-high cut score encourages law students to do precisely that—it may help them on the bar, but hurt them in their professional development and training for lawyering.
David Faigman, UC-Hastings
I was profoundly disappointed in the court’s decision. I appreciate that the court contemplated future work that might lead to a more justified cut score and I expect to be involved in that work. However, the court’s opinion-letter completely failed to engage the substantive policy issues that are presented by this important matter as they arise today.
The court recognized that the 1440 score that is currently employed was without empirical basis. It also noted, correctly, that the significantly lower cut scores used by virtually all other states similarly lack an empirical foundation. So this decision simply keeps in place the status quo, but without explanation of what—besides historical practice—justifies it.
This practice, we now know, operates as a substantial barrier to entry, one that has a significant disparate impact on minority candidates to the bar. I found it unfortunate, to say the least, that the court’s opinion-letter did not grapple with these difficult issues. Instead, it simply offered conclusions, without analysis.
Stephen Ferruolo, University of San Diego
The court’s letter provided no justification for keeping the cut score at 1440. The data showing the disparate impact that California’s exceptionally high cut score has on underrepresented minorities is clear and compelling.
I would also note the court’s unwillingness to meet with law school deans to discuss this important issue. Such meetings have been common in most other states grappling with this issue. This, combined with the state bar’s refusal, to support the recommendation made by the Law School Council to appoint a blue ribbon panel, including deans, to address the issue of the bar exam comprehensively make me pessimistic that California is prepared to address this issue in a timely fashion, if at all. I doubt the proposed bar exam studies will do anything other than support the status quo as long as they are left in the hands of the state bar, as we have seen with the studies completed so far.
Meanwhile, hundreds, if not thousands, of applicants who would pass the bar exam in nearly every other state, including major states like New York, will fail the California exam and be required to incur the costs, time and money of taking the exam again—and most of these will be minorities. What a tragedy for them and for our state.
Kevin Johnson, UC-Davis
What jumped out at me in the chief justice’s letter was the encouragement to law school’s and the state bar to work together to provide the information necessary to make an informed decision about the appropriate bar passage score. UC Davis School of Law has been working with the state bar to provide the necessary information. We will continue to do so and look forward to future developments with respect to the bar pass studies.