Thursday, December 13, 2018

Should California Lower Its Bar Passage Score?

California's bar passage rate has been disastrous the last two years.  Three California law school deans wrote an op-ed in the LA Times urging that the "cut-score" be lowered to allow more applicants to pass the bar.  Some have responded to this argument by declaring that the bar passage rate fell in conjunction with California law schools admitting less competent applicants (lower LSATs and GPAs).

Jill Switzer has written an insightful piece on this controversy on Above the Law.  Excerpts:

"These deans concede that between 2010 and 2017, law schools admitted students with lesser LSAT scores and lower GPAs, and they also concede that 'there is undoubtedly some correlation between those metrics and performance on the bar exam and in law school.' Duh."  (emphasis added)

"My point is that I am tired of the law deans whining. This seems to me to be a classic case of 'blaming the victim,' i.e., the exam, when the blame should lie with the education that law students receive. If incoming students can’t write a cogent sentence, let alone a paragraph, without grammatical mistakes and typos, without understanding and analyzing the issue correctly, then what chance do they have of persuading a court to rule in their client’s favor? Should they even be in law school?"

"If anyone has the right to whine, it’s those students who failed the bar exam. Three or perhaps four years of law school, massive quantities of debt, and facing the unhappy prospect of having to take the bar exam again. Were they adequately prepared? Did they do the work and the studying necessary?"

"Law school deans holler about the bar cut score and the lack of access to justice, but would lowering the cut score improve access to justice, and would it improve the quality of the access to justice?"

"Here in California, and I would imagine in other states as well, the stated purpose of the State Bar is public protection, regulating attorneys, and promoting access to justice. So, if the cut score is lowered and malpractice claims rise and the number of attorneys who are disciplined rise, how does that mesh with the purpose of public protection?"

The bottom line is that the bar exam's purpose is to protect the public.  Lowering the pass score will not further this purpose.

As we have written countless times on this blog, if law schools want to raise the bar pass rate, they need to improve the education they are providing. 

One possibility, as Switzer suggests, is to have a test of students' writing ability before they enter law school and to have remedial classes for those who fail the test.  I have many more suggestions for improving legal education in my book How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018).

(Scott Fruehwald)

https://lawprofessors.typepad.com/legal_skills/2018/12/should-california-lower-its-bar-passage-score.html

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