Gary Rosin on ABA's Proposal Regarding Bar Pass Rates and Accreditation

We've been following South Texas Law Professor Gary Rosin's important work on bar pass rates for a while and its implications for the ABA's consideration of modifications to its law school accreditation standards. 

Here is Professor Rosin's latest report, which discusses the ABA's December 2007 draft of interpretation 301-6.  (You'll also want to read Rosin's Unpacking the Bar Exam: Of Cut Score, Competence, and Crucibles, available on ssrn.)  There current proposal is as follows (I've put it in green to make it distinguish it from the rest of the text):

    Proposed Interpretation 301-6  (Approved for Notice & Comment 12-1-07)

A.  A law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:
   
1)  That for students who graduated from the law school within the five most recently completed calendar years:

    (a) 75 percent or more of these graduates who sat for the bar passed a bar examination, or
    (b) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.

In demonstrating compliance under sections (1)(a) and (b), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70% of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. 

2)  That in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions.

In demonstrating compliance under section (2), the school must  report first-time bar passage data from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency.  When more than one jurisdiction is reported, the weighted average of the results in each of the reported jurisdictions shall be used to determine compliance.

B.  A school shall be out of compliance with the bar passage portion of Standard 301(a) if it is unable to demonstrate that it meets the requirements of paragraph A (1) or (2).

C.  A school found out of compliance under paragraph B, and that has not been able to come into compliance within the two year period specified in Rule 13(b) of the Rules of Procedure for Approval of Law Schools, may seek to demonstrate good cause for extending the period the school has to demonstrate compliance by submitting evidence of:

(i)  The school’s trend in bar passage rates for both first-time and subsequent takers: a clear trend of improvement will be considered in the school’s favor, a declining or flat trend against it.

(ii) The length of time the school’s bar passage rates have been below the first-time and ultimate rates established in paragraph A: a shorter time period will be considered in the school’s favor, a longer period against it.

(iii) Actions by the school to address bar passage, particularly the school’s academic rigor and the demonstrated value and effectiveness of the school’s academic support and bar preparation programs: value-added, effective, sustained and pervasive actions to address bar passage problems will be considered in the school’s favor; ineffective or only marginally effective programs or limited action by the school against it.

(iv) Efforts by the school to facilitate bar passage for its graduates who did not pass the bar on prior attempts: effective and sustained efforts by the school will be considered in the school’s favor; ineffective or limited efforts by the school against it.

(v) Efforts by the school to provide broader access to legal education while maintaining academic rigor: sustained meaningful efforts will be viewed in the school’s favor; intermittent or limited efforts against it.

(vi) The demonstrated likelihood that the school’s students who transfer to other ABA-approved schools will pass the bar examination:  transfers by students with a strong likelihood of passing the bar will be considered in the school’s favor, providing the school has undertaken counseling and other appropriate efforts to retain its well-performing students.

(vii) Temporary circumstances beyond the control of the school, but which the school is addressing: for example, a natural disaster that disrupts the school’s operations or a significant increase in the standard for passing the relevant bar examination(s).

(viii) Other factors, consistent with a school’s demonstrated and sustained mission, which the school considers relevant in explaining its deficient bar passage results and in explaining the school’s efforts to improve them.

Rosin finds the most recent proposal for 301-6(A)(1) "is a major step forward in at least two respects. First, to a certain extent, it takes into account cumulative Bar passage rates, including subsequent Bar passage by those who failed on the first attempt. Second, for purposes of calculating a school’s cumulative Bar passage rate, its graduates from the relevant years are considered as a group."  He identifies other problems with the proposal and concludes, "An empirical analysis of projected difference scores shows that the minus 15% difference score standard will disproportionately affect both historically black law schools, as well as law schools with part-time programs."

Of particular interest to law professors is a table, which lists 17 schools at "high risk" and another 11 schools at "moderate risk" for problems under the proposed standards.

Update:  If you'd like to see all of Professor Rosin's reports collected in one place, they're available here.  Over at concurringopinions.com, Dave Hoffman's been following this story and some time ago Bill Henderson at elsblog.org discussed bar pass scores as well.  Also, I had a little on this over at money-law some time ago and here.

Alfred L. Brophy
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