Tuesday, October 24, 2017

Tracking Bar Exam Passage

The ABA should implement a national database for tracking bar examination results. 

Bar passage reporting, in its current iteration, is (a) inconsistent across agencies due to a lack of common vocabulary; (b) increasingly time consuming for law schools to complete, especially when tasked with tracking graduates for several years; and (c) largely dependent upon state courts' willingness to share information.  A unified, national database would alleviate many of these issues. 

A. Adopt the ABA's definition of first-time takers.  

Is this the first time that you’ve sat for the bar exam? Seems like an easy question with a straightforward answer … but not so fast. The correct answer all depends on who is asking the question.

The American Bar Association says that you are a first-time taker if this is the very first time you are taking any bar exam in any jurisdiction.  The ABA's common sense definition gives bar exam takers just one shot (feel free to hum Hamilton lyrics now) at being a "first-time taker."  

Meanwhile, the National Conference of Bar Examiners defines first-time takers as “examinees taking the bar examination for the first time in the reporting jurisdiction.”  The NCBE’s (arguably illogical) definition allows me—a professor who prepares law school students to sit for the bar exam—to be counted as a first-time taker at least 48 more times, if I am so inclined. Incidentally, the U.S. News & World Report follows the NCBE’s definition when computing a school’s national rankings.

On the other hand, other accrediting bodies (such as a state's Higher Education Policy Commission) make no meaningful distinction between first-time takers and repeat takers when calculating institutional pass rates on professional licensing exams, resulting in a third, different pass rate statistic for the same school.

The two primary definitions of “first time taker” employed by the ABA and NCBE are further complicated by examinees who sit for the bar exam in one UBE jurisdictions and then seek to transfer their score to another UBE jurisdiction with a different cut score.  The lack of a common vocabulary defining "takers" and "passers" is just the tip of the reporting iceberg, however. 

B. Adopt an academic calendar based reporting period of reasonable duration.

Agencies also cannot agree on how long law schools should be tracking their graduates.  Most agencies require law school's to report bar passage based on a calendar year (e.g. February 2017 and July 2017), not an academic year.  The calendar year model frequently has the effect of blending two distinct graduating classes into one report, e.g. the Class of 2016 and the Class of 2017, respectively, in my earlier example.  Reporting difficulties are poised to become even more complex if law schools are tasked with tracking their graduates for up to 24 months after graduation, as has been proposed by the ABA.

C. Require state courts to release comprehensive examination results.

The ability of a law school to produce an accurate bar passage report can be substantially impacted by the manner in which their home and neighboring jurisdictions elect to release its results.  Currently, there is no acceptable template or formula across the more than 50 U.S. jurisdictions.  Some jurisdictions release the names of those who passed the exam on a publically viewable website, while others only list anonymous seat numbers.  Some states will voluntarily mail a law school a results notification, while others require that the law school affirmatively request the results for individual applicants each time they sit for an exam (which presupposes that a law school is aware that one of its applicants sat in that jurisdiction at that time.)

D. Establish a national database that implements the ABA's definition of first-time taker, employs an academic calendar reporting model, and serves as a single repository for every state courts' examination results.

With both accreditation and national rankings at stake for law schools, a unified and comprehensive bar passage reporting system is imperative. The Conference of Chief Justices recognized the need for collaboration across the various agencies ten years ago when it passed a resolution urging the Law School Admissions Council, the National Conference of Bar Examiners and the American Bar Association Section of Legal Education and Admissions to the Bar to establish a national system for tracking bar examination test results. Then five years later, the ABA’s Council of the Section of Legal Education and Admissions to the Bar passed a virtually identical resolution. Yet, despite apparent support from at least two of the key stakeholders (namely the ABA and the state courts), no national database exists. The various agencies cannot even reach a consensus on who constitutes a “first time taker." 

A national database should no longer just be an aspirational goal. Rather the database needs to be created, and fast—especially in light of the growing popularity of the UBE and proposed changes to bar passage reporting requirements. A national database housing bar passage data for all law school graduates would alleviate a substantial administrative burden on every law school. For example, each state court system could report their state’s bar passage data to one agency—likely the ABA given their primary role in accreditation. Then the ABA could code the information in such a way that law school administrators and ASP’ers would be able to access the results for just those graduates who are affiliated with their particular school. The information could be searchable, such that any ASP’er could query: “2107 graduates + West Virginia + July 2017 + first time taker.”  With a few simple clicks, accurate bar passage reporting could be achieved by the masses.  Oh, the possibilities! 

I look forward to watching this issue develop in the coming months and years, with hope that the justices’ decade old dream of a national database becomes a reality.   (Kirsha Trychta)


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