Friday, January 25, 2019

Debate: Should the ABA Raise the Bar Pass Accreditation Standard?

Next week, the ABA House of Delegates will again consider a revised standard that requires at least 75 percent of a school’s graduates to pass the bar within two years of graduation or risk losing accreditation.  The House of Delegates has rejected this rule before, but the ABA Council could enacted the rule even if it is rejected again.

There has been a great deal of criticism of the proposal on the ground that it might adversely affect law schools with large numbers of minority students.  The Best Practices for Legal Education blog has written the following:

Amongst the issues the letters raise about the proposed change are the following:

"1. There is incomplete data about how it will affect HBCU’s and other law schools with significant enrollment of people of color;

2. It fails to account for state bar exam cut score differences and differences in state bar exam pass rates;

3. It may result in even greater reliance on LSAT scores in the admissions process despite studies showing the scores’ limited predictive value for academic or bar exam success at many schools and despite warnings from the LSAC about how to use the scores properly in the admissions process;

4. It may negatively impact schools willing to take a chance on students who are poor standardized test takers but who will be excellent lawyers and leaders if given the opportunity to attend law school and the coaching necessary to pass the bar exam;

5. It does not consider the effect of transfer students on bar pass rates for schools that admit students who otherwise would not be admitted to law school, who perform well, and who then transfer to other institutions;

6. It eliminates some important aspects of the current Standard that take into account varying state pass rates, a school’s mission, the transfer issue, and the fact that improving bar passage is a complex and nuanced issue that requires study and experimentation [something currently underway at many schools];

7. Now is not the right time for change given current studies about the validity of the bar exam as a licensing method and work being done to explore law licensing assessments that better measure who will be a competent attorney."

These are legitimate concerns.  The question, however, is why many law schools did nothing to improve legal education to help minority students when bar exam scores started to decline several years ago.  In 2007, Best Practices and The Carnegie Report demonstrated in great detail that law schools were not providing a quality education to their students.  Since then many scholars have reiterated these concerns.  For example, I wrote an article showing how law schools could help minorities do better in law school.   How to Help Students from Disadvantaged Groups Succeed in Law School, 1 Texas A & M Law Review 83 (2013).  Professor Louis Schulze put similar ideas into practice at FIU, and his school has scored highest on the Florida bar exam again, again, and again. (here)

All law schools must do their part to increase the diversity of the legal profession.  However, they should not be able to do this by admitting unprepared students, then doing nothing to help them become effective attorneys.  It does nothing for minorities if law schools graduate them without the tools to be competent attorneys.  It does nothing to help disadvantaged communities for law schools to graduate students who will hurt those communities more than help them.  The present situation is turning out attorneys who cannot earn enough money to pay off their crushing law school debt.

I urge the House of Delegates to enact the proposal.  As I noted, many law schools have ignored the call for legal education reform for over ten years.  We can't wait any longer.  Do your part, or lose your accreditation.

(Scott Fruehwald)

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