Declining Bar Pass Rates Webinar Review

Kirsha Trychta, former contributing editor, gladly passed along her notes from the recent webinar discussing declining bar pass rates and the role of law schools.  If you have questions, you can contact her for more details.  Below are her notes.

On May 6, 2019, I attended a free webinar entitled “Live with Kellye & Ken: Declining Bar Passage and the Role of Law Schools in Bar Exam Prep and Reform.”  The 90-minute presentation consisted of six panelists:

• Aviva Abramovsky, Dean of University at Buffalo School of Law
• Leonard M. Baynes, Dean of the University of Houston Law Center
• Jon M. Garon, Dean of Nova Southeastern University Shepard Broad College of Law
• Judith Gunderson, President of National Conference of Bar Examiners
• Kenneth Randall, Dean Emeritus at University of Alabama Hugh F. Culverhouse, Jr. School of Law
• Kellye Testy, President & CEO of LSAC

 

Gunderson opened the presentation with an update on the state of the bar exam.  She explained that the February 2019 MBE mean increased for the first time since 2013.  According to Gunderson, the NCBE regularly focuses on the MBE statistic because: (1) the NCBE does not grade the essay component, (2) there are different cut scores across the jurisdictions, and (3) not all jurisdictions release results at the same time. 

She then told “the tale of two bar exams,” a tale which emerges if one compares July and February.  The NCBE reports that 68-70% of all examinees that sit in February are repeat test takers.  Meanwhile, in July repeat test takers comprise only 26% of all takers.  Typically repeat test takers earn lower scores than first time takers.  Moreover, even February first-time takers have a lower mean than first-time takers in July.  Finally, February score reports are complicated by the small number of applicants in some jurisdictions.  Consequently, just 3 or 4 people can totally derail a mean average for a particular jurisdiction.  In short, February scores are “not stable.” 

The adoption of the UBE is also impacting how many times each applicant sits for a bar exam.  Overall, the total number of people sitting for the bar exam keeps dropping, and each year there are less “passers” or “strong repeaters” (that is, those people who passed in one jurisdiction and sit again for licensure in a second jurisdiction.)  The decrease in overall takers—especially strong takers—continues to drive the overall pass rate numbers down.  For more statistics, click here.

Next, the Deans were invited to opine on whether law schools really have a problem with bar passage.  Abromovsky acknowledged that “we have a lot of changes going on right now, especially with the UBE.”  She suggested that law schools might just need a certain amount of time to “react with pinpointed specificity” to the changing format.  Baynes agreed and specifically highlighted the addition of civil procedure to the MBE.  He was, however, more concerned that “we’ve created a social construct of who passes and who doesn’t pass.”  If people are labeled as “likely to fail” or “likely to pass” perhaps they internalize the labels and then perform consistent with the assigned label.  Garon raised another concern: the ABA’s competing goals of increasing the focus on experiential learning and learning outcomes, while also increasing bar passage.  Can law schools really do both simultaneously, he wondered.  Testy rounded out the discussion by reminding listeners that the LSAC is “an incredibly strong predictor of success in law school,” but it’s not the only thing a law school should consider.

Randall, serving as a moderator, then posed a batch of questions for the panelists: What is the responsibility of law schools regarding the bar exam?  Are there tradeoffs?  Should there be different curriculum tracks for students? 

Garon responded unequivocally: there is a lot of pressure to assume a greater, more active, role in both job placement and bar passage.  For example, at Nova Southeastern, they’ve extended bar preparation into all three years of the curriculum.  In addition, there is a mentoring program during bar prep for both first-timer takers and repeaters.  Nova even offers two years of free CLE to aid in the transition from law school to the workforce, including a “launch pad” program for those who are interested in solo practice.  Garon linked the increased pressure to prepare students for the bar and for legal practice to economic changes.  He suggested that “economics have undermined the relationship between law schools and law firms.”  Students are expected to be billing associates on their first day at the office, instead of just beginning their training when they join the firm.  Baynes aptly summarized, “we are now responsible for everything.” 

The University of Houston Law Center conducted a regression analysis, using five years of law school data, and determined, unsurprisingly, that lower law school grades correlated with lower bar passage.  In response to their findings, Houston created a “special course” for the lowest performing students.  Baynes explained that the law school admits every student thinking they will pass the bar exam, so if it becomes apparent that the student might not pass the exam, it is incumbent upon the school to intervene.  One possible intervention could be the mandatory implementation of midterm examinations in first-year courses.  One Dean observed that since administering midterm examinations, students’ performances have increased overall, including in courses without a midterm examination (i.e. pedagogical transference).  He then quickly—and probably correctly—remarked that law professors “might not be the best teachers.”

Baynes has also seen an increase in the degree of anxiety among his students.   Students are more willing to talk about mental health issues, but the cost of treatment remains a barrier.  To combat the growing trend, his law school now offers meditation embedded in the curriculum.  Similarly, other schools have adopted wellness activities like yoga and petting zoos.  Garon commented on the Board of Law Examiners continued improvement in their handling of character and fitness disclosures, especially as those disclosures relate to mental health issues.   He then raised a parallel concern: academic testing accommodations.  While the jurisdictions have been willing to revisit their position on mental health disclosures, many remain quite unmoved regarding testing accommodations.  Too frequently, accommodations which were considered appropriately documented at law school are not sufficiently documented for the Board of Law Examiners, creating another barrier to exam success.

Abramovsky used most of her allotted time to discuss the impact of the post-2008 economy on law schools.  The average law student is no longer unmarried, childless, willfully unemployed, and fully dedicated to their legal education.  Her institution found, again unsurprisingly, that completing the bar preparation course was the strongest indicator of bar passage.  She encouraged schools to focus their efforts on identifying why some students do not complete the bar preparation program.  She suspects those students are too busy working part-time (or even full-time) jobs to study for the bar exam.  Perhaps that also explains why the student earned poor grades in law school, she wondered aloud.  She said law schools would be wise to check-in with their students in a routine and more holistic way.  She offered this metaphor, ripped from the headlines: an emergency room adopted a series of mini-checklists that doctors must complete before discharging a patient, designed to reduce the frequency of post-discharge infections.  Since adopting the quick “have you…” checklists, infections have dramatically decreased.  It appears a little check-in goes a long way. 

Following Abramovsky’s observations about the financial crunch, Testy announced that AccessLex is currently developing a lower-cost bar preparation course.  AccessLex’s press release states, “The program will function like a co-operative, with a transparent pricing structure established at a break-even level and reduced further as cost efficiencies are gained.”

The panelists entertained questions from the audience.  A listener inquired whether the NCBE could better assist law schools in identifying the specific subjects that are tested on the bar examination.  Gunderson explained that the specific subtopics vary every few years, following input from various stakeholders.  For example, in the last few years several jurisdictions have suggested that environmental law and Indian law should be added to the bar exam, but the number of requesting jurisdictions “has yet to reach critical mass.”  Meanwhile, the number of stakeholders pushing for negotiable instruments continues to decline each year.  Gunderson stressed that the “NCBE has no power.”  Ultimately the individual jurisdictions decide what components to administer and how to score the exam. 

Gunderson then pivoted to how students can better prepare and announced that NCBE study aids are now available in an interactive learning platform.  The “everything” packet which includes over 900 practice questions costs $250.  She also publicized that the NCBE plans to host an academic support focused conference this fall and will subsidize the travel costs for some attendees to ensure maximum participation.  She then reminded everyone that the Testing Task Force is out there collecting suggestions on the future of the bar exam, including the focus groups which will take place at the Association of Academic Support Educators Conference later this month. 

Garon is concerned that “we keep expanding what we expect of students.”  The bar exam used to be just a measurement at a moment in time between law school and starting your legal training.  Now the bar exam is frequently being used as a proxy by employers to measure the graduates’ readiness to join the workforce.  Garon recommended that we scale back the breadth of knowledge tested and instead increase the professionalism component, because that is what employers want anyway. 

The panelists also talked about the future of “state specific components” on the bar exam, considering the UBE.  Each Dean explained how their particular jurisdiction has handled the issue.  It quickly became apparent that there is little consensus among the jurisdictions.  Abramovsky chimed in, and said, “reasonable discourse” was to be expected, and that “we should be proud to consistently reexamine issues [like this one] that require core balancing decisions.”

(Kirsha Trychta, Guest Blogger)