A Decision for Now: California Supreme Court Maintains Current Bar Cut Score

Hat tip to Professor Mainero at Chapman...

In a recent new release from the California Supreme Court, the Court set out its reasons for not adjusting that state's current minimum passing bar exam score of 144 (1440 or 72 percent):  

https://newsroom.courts.ca.gov/news/supreme-court-issues-letter-relating-to-in-re-california-bar-exam

In the release, the Court discusses the following major points.

1. The California Bar Exam has seen wide fluctuations in first-time pass rates since the state first begin using the current cut score of 144 (1440 or 72 percent) in 1987, and that more recent bar exam pass rate declines mirror bar exam pass rate declines across the nation based on published NCBE research findings.
2. The Court acknowledged that the current cut score was "not established through a standard setting study," i.e., whether the bar exam's cut score measures minimum competency, and that most if not many states similarly lack such research studies.
3. Thus, using July 2016 answers and scores with a panel of court-appointed subject matter experts, an independent psychometrician largely concluded that the a score of 139 (1390) [69.5%] was the baseline value for measuring minimum competency (though the study was questioned by two independent researchers and by many in the legal education community).
4. Based on largely on the lack of data, the Court at this point in time is not convinced that the cut score needs adjustment based on either the independent psychometrician's research nor based on the numerous amicus letters the Court received.
5. The Court will revisit the issue based on any "appropriate recommendation."

For those of us in the ASP community, we were hopeful.  But, even though at least for now the Court did not amend the cut score, perhaps there is still a glimmer of sun shining through this news release right into our domain of expertise.  

That's because the Court then goes on to "encourage[]  the State Bar and all California law schools to work cooperatively together and with others in examining (1) whether student metrics, law school curricula and teaching techniques, and other factors might account for the recent decline in bar exam pass rates; (2) how such data might inform efforts to improve academic instruction for the benefit of law students preparing for licensure and practice; and (3) whether and to what extent changes implemented for the first time during administration of the July 2017 exam — that is, adoption of a two-day exam and equal weighting of the written and multiple choice portions of the exam — might bear on possible adjustment of the pass score. 

Speaking plainly, the Court is reaching out to each of us in the field to provide the evidence as to what have actually been the factors in the most recent declines in bar pass rates (and how to improve legal education and the licensure exam).  At least based on our own research study, it's not due to LSAT declines.  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2842415.  That's because we have seen dramatic swings in bar passage rates with very little fluctuation in LSAT scores at the 25 percentile and the mean.  In other words, it seems like LSAT scores have, at least in our case, played very little (to no) role.  If not LSAT, then what?

Well, here's a possible list of some of the factors:

1. Increases in student debt loads.
2. Increases in the numbers of bar takers studying largely or solely through online bar review learning platforms despite years of experience primarily as classroom learners.
3. Changes in the bar exam subjects matter scope or format.
4. Changes in the way(s) that we teach students to learn (and perhaps changes in the way students learn).

That's just a few possible other factors.  But, without evidence, at this point in time the California Supreme Court will not adjust its bar exam cut score.  

So, the time is ripe (or, to use a bit of contrast law terminology, "time is of the essence") in providing the Court, legal educators, the bar, and the public with what might be the appropriate cut score to measure minimum competency and whether the bar exam itself is actually up to the task.  So, make your voice known today; share your thoughts and inspirations.  Put it down perhaps in a draft SSRN article or essay or your own blog.  But, make a record of what you know because what you know might make a real difference down the line in empowering people to succeed on the bar exam and as professional attorneys too!  Simply put, there's no time to waste.  (Scott Johns)