Monday, May 21, 2007

More on the 70% Bar Pass Proposal

Last week, Al had a post on an ABA proposal regarding bar passage rates that referenced a letter from Gary Rosin in opposition to the proposal.  Brady Coleman, one of Gary's colleagues at South Texas, has sent along a letter disagreeing with Gary's position and arguing in favor of the ABA proposal.  I disagree with some of Brady's points, but his letter, which is reproduced in its entirety below the fold, raises some arguments that should be considered by anyone interested in this issue.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Dan Freehling, Deputy Consultant
Section of Legal Education and Admission to the Bar
American Bar Association
321 N. Clark St.
Chicago, IL 60610

May 19, 2007

Dear Mr. Freehling,

RE: ABA Accreditation Interpretation 301.6

We all know that bar passage rates have gone down nationally by a significant percentage in recent years.    What to do?  This large reduction in national bar passage rates represents a significant amount of wasted time and money and student humiliation.   The extra unqualified admitted students may bring additional funding to financially strapped law schools, whose opinions on the new ABA interpretation might be treated with some caution.   By firming up the 70 percent rule, the ABA is on the right track.    First, let me state my assumptions:

1. "Cut" scores are set by the state board of bar examiners. Most often this board is an agency of the highest state court in the jurisdiction, but occasionally the board is connected more closely to the state's bar association.   

2. The quality of entering law students (and hence their predicted bar passage rates) are of course set by individual schools (and annually varying demographic and unemployment, etc. elements).

Then, the larger question becomes: who do we want to entrust bar passage rates with, 1) individual law schools through their admission policies, or 2) bar examiners (who have the same flexibility as law schools to lower or raise standards by simply adjusting their cut scores down or up as desired).

The “blunt” 70 percent argument is a red herring; it gives the impression of a hard line where flexibility is actually present; it is indeed "blunt" in appearance but the ability of states to adjust cut scores makes it anything but blunt.  Indeed, a fixed number avoids some state-based algorithm under changing state conditions which would create a nightmare of complexity.

Anyway, the ABA has wisely with the new "70 percent" proposal apparently compared the relative objectivity and motivations of these two respective institutions, law schools and bar examiners:

1) Individual law schools are motivated to, inter alia:

(a) Keep higher bar passage rates for reasons including maximizing the number of applications, U.S. News rankings, prestige, alumni giving, and so on.

But contrarily motivated by:

(b) The willingness to accept lower bar passage rates for often overwhelming and pre-existing financial obligations (more students = more funding).

There is no easy way to determine how these two contradictory motivations play out in any given (ethical) law school, (and other factors are relevant) but my experience is that often short-sighted but powerful institutional budgetary forces may give (b) (above) more sway in many schools, particularly lower-ranked schools with smaller endowments.

Compare the motivations of the other set of institutions, state bar examiners:

2) Bar examiners we might imagine are motivated to 'adjust' cut scores (and therefore passage rates) by similarly contradictory concerns:

(a) a monopolistic desire on the part of existing influential practitioners to minimize the number of lawyers in their jurisdiction, by increasing cut scores, thereby maximizing their own incomes; the effect of this factor is obviously related to the ability of practitioners to influence 'cut scores' (as opposed to, say, the state judiciary, directly or indirectly).   My understanding is that the judiciary can in most states influence 'cut scores' rather significantly, because of its power over bar examiners.    Litigation can be (and has) been the ultimate result.  Another motivation for bar examiners is the need for a minimal level of competency by legal professionals (although this is likely overrated, as a fair percentage of legal practitioners engage in rather routine clerical work).

But contrarily motivated by:

(b) The ethical concern to act in opposition to the need of legal educators to accept unqualified students for financial reasons when statistics reveal the odds are that they will spend three exhausting and expensive years without a law license, but typically burdened with large debt.

In conclusion: state bar examiners, regulated by the non – financially motivated judiciary, should be preferred to create the most appropriate number of lawyers in a given state than either that of budgetary-influenced law schools (or practitioners).

An often stated rationale for keeping the bar passage rate more flexible is the need to keep minorities in the profession.   Indeed, this country needs a percentage of lawyers roughly proportionate to the percentage of each racial or ethnic group in the population (for various reasons).    But the Orwellian argument against a firmer 70 percent rule is ‘diversity,’ and is based on the need to achieve this by sustaining a system of ‘historically’ black law schools (supposedly to be eliminated by the 70 percent rule).   But, at least at the law school level, these schools do precisely the opposite: minimizing law school racial diversity at nearby institutions in those regions where historically black law schools exist (not to mention at the historical black law schools themselves).     Segregation is exaggerated, not reduced.  A gradual attainment of the 70 percent requirement would force law schools to become more diverse, not less, assuming racial disparities in bar passage continue, and assuming wise law school administrators see the advantages of an ethnic and racial balance of law student representation.

Almost the entire world (except the USA) gives law degrees at the undergraduate level.  Little is wasted even in countries with very low passage rates (Japan, Korea), because an additional three years of education has not been required.   Folks with law degrees just go on to work as non lawyers, often at high prestige jobs, with their law B.A.'s.

But because America requires such a massive investment of money and time into obtaining this professional degree, we owe it to our students to keep a stricter minimum bar passage rate. 

It should be clear by balancing the two sets of contradictory impulses by the two institutions above which is the better positioned to establish such minimums, as the ABA has recognized, and will hopefully implement.   

In years ahead, I predict that the proposed interpretation will, if enacted: (1) require lower ranked schools to ‘shrink’ so as to maintain the needed bar passage rate and student quality; and (2) gradually increase the diversity of law schools as institutions with sub 70 averages are forced to integrate more successfully.


Brady Coleman
Associate Professor
South Texas College of Law
[email protected]

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