Should state adopt lower pass­ing score for bar exam?

Cur­rent one may harm stu­dents of color

The Sacramento Bee - - Front Page - BY SAWSAN MORRAR smor­[email protected]

A con­tin­u­ing de­cline in Cal­i­for­nia’s bar exam pass rate is prompt­ing nearly all of the state’s law school deans to call for an over­haul of the exam.

They sug­gest the state’s min­i­mum pass­ing score of

144 is too high, com­pared to the na­tional av­er­age of

135, and dis­pro­por­tion­ately keeps African-Amer­i­can and Latino law grad­u­ates from en­ter­ing the pro­fes­sion. They also say that Cal­i­for­nia grad­u­ates who per­form bet­ter than av­er­age, and who would have passed the bar in any other state, are fail­ing in Cal­i­for­nia.

The crit­i­cisms, in­cluded in a let­ter signed by 19 of the state’s 20 ABA ac­cred­ited law school deans, fol­lows the most re­cent July 2018 bar exam that saw scores fall to a 67year low. Only 40.7 per­cent of test tak­ers passed the exam, roughly a 9 per­cent drop since July

2017. Cal­i­for­nia has seen more ap­pli­cants fail than pass the exam since 2013.

At a time when the le­gal pro­fes­sion is look­ing to build di­verse teams, the deans say the cut score of

144 – sec­ond high­est in the na­tion – is too lim­it­ing for all ap­pli­cants but es­pe­cially harms mi­nor­ity grad­u­ates.

Newly re­leased data, col­lected af­ter the July

2018 bar exam, shows that if Cal­i­for­nia adopted the na­tional av­er­age, the num­ber of African-Amer­i­can law grad­u­ates pass­ing the exam would have dou­bled.

Nearly 24 per­cent more Latino law grad­u­ates would pass the exam if Cal­i­for­nia adopted the na­tional av­er­age score.

Cal­i­for­nia’s cut score, es­tab­lished in 1985, draws a line “with­out a care­ful, em­pir­i­cally grounded ba­sis to sup­port it,” read a let­ter to the Supreme Court of Cal­i­for­nia signed by the law school deans.

“More clients in­sist on hav­ing di­verse lawyer­ing teams, and this is an irony,” said UCLA School of Law Dean Jennifer Mnookin “We are this ex­traor­di­nar­ily di­verse state that is re­duc­ing the pool of good lawyers.”

Oregon and Washington low­ered their cut scores, mak­ing Cal­i­for­nia an out­lier. Delaware is the only state with a score re­quire­ment higher than Cal­i­for­nia’s at 145, but that state had 172 test tak­ers com­pared with Cal­i­for­nia’s 8,071 in July.

Sev­eral Cal­i­for­nia law deans, in­clud­ing Mnookin, want to lower the cut score, but didn’t rec­om­mend where that cut­off should be.

“We are aware of no valid ev­i­dence show­ing that the un­usu­ally high cut score dis­tin­guishes ac­cu­rately be­tween those who should and those who should not be li­censed to prac­tice law in Cal­i­for­nia,” read an­other let­ter to the Supreme Court of Cal­i­for­nia.

UC Davis School of Law’s Kevin John­son was the only dean not to sign the let­ters to the jus­tices, say­ing that he had con­cerns with their tone.

“Like the other deans, I do have con­cerns whether our cut scores are rea­son­able com­pared to other states,” John­son said. “I un­der­stand the con­cern that we may be screen­ing out peo­ple who would be li­censed in other states to prac­tice law, and we may be screen­ing out a dis­pro­por­tion­ate num­ber of mi­nori­ties.”

In July 2018, 75 per­cent of UC Davis School of Law stu­dents passed the bar exam on their first at­tempt, com­pared to 50 per­cent at McGe­orge School of Law. Lincoln Law School of Sacra­mento, which only has Cal­i­for­nia ac­cred­i­ta­tion while the oth­ers are na­tion­ally ac­cred­ited, had a pass­ing rate of 13 per­cent in July.

In re­cent years, lower bar score rates were re­peat­edly recorded in sev­eral states, in­clud­ing Texas and New York. Some states took ac­tion. New Hamp­shire, for ex­am­ple, now has an al­ter­na­tive li­cens­ing model, called the Daniel Web­ster Scholar Hon­ors Pro­gram, which al­lows stu­dents to learn ba­sic real-life skills they will need in the court­room. Stu­dents sub­mit port­fo­lios and oral per­for­mances, and the State Bar ex­am­in­ers re­view them each se­mes­ter. Those who pass are able to skip the bar exam.

CAL­I­FOR­NIA MAKES CHANGES

Cal­i­for­nia isn’t ig­nor­ing the fact that the pass­ing rates have fallen dra­mat­i­cally.

In Fe­bru­ary 2017, the Cal­i­for­nia Supreme Court man­dated that the State Bar un­der­take a “thor­ough and ex­pe­dited study” to de­ter­mine what is­sues are af­fect­ing pass rates. So far, the State Bar has con­ducted four stud­ies to de­ter­mine if the cut score and exam con­tent are ap­pro­pri­ate.

Those stud­ies showed that law schools were ad­mit­ting stu­dents with lower grade point av­er­ages, and LSAT scores - the test that ad­mits you into law school.

“This only ex­plains a mod­est frac­tion,” said Mnookin. “It can­not ex­plain most of the de­cline” in bar exam scores.

Mnookin said she has her own the­ory to bet­ter ex­plain the de­cline.

“The bar exam was in­vented as a pa­per and pen­cil test,” she said, sug­gest­ing that past gen­er­a­tions fo­cused on mem­o­riza­tion while cur­rent law stu­dents rely more on quickly ac­cess­ing on­line data. “Some of what is on the bar exam might not be a good fit for this gen­er­a­tion.”

The State Bar didn’t nec­es­sar­ily agree. Af­ter re­view­ing the State Bar’s stud­ies, the Supreme Court of Cal­i­for­nia de­clined to mod­ify the cut score ac­cord­ing to a let­ter sent by the jus­tices.

The State Bar did, how­ever, say that ad­di­tional

stud­ies of the bar exam were needed.

The State Bar is now work­ing on a Cal­i­for­nia At­tor­ney Prac­tice Anal­y­sis to de­ter­mine what en­trylevel skills and knowl­edge are needed to prac­tice law.

Sev­eral Cal­i­for­nia law school deans said that the bar exam isn’t quite rep­re­sen­ta­tive of the day-to­day work lawyers ac­tu­ally do.

“The bar is a frac­tion of what a lawyer needs to have,” Mnookin said. “It doesn’t test how or­ga­nized, hard­work­ing or at­ten­tive some­one is. They don’t test for in­ter­view­ing skills, the abil­ity to speak well in pub­lic.”

“There are crit­i­cal skills that lawyers need and it’s not mul­ti­ple-choice ques­tions, mem­o­riza­tion or speed­i­ness,” said McGe­orge School of Law Dean Michael Hunter Schwartz. “The bar exam is a very time-con­strained exam, and there is noth­ing in prac­tice where you have an hour to act. We take the things that are least likely to be prac­ticed, and el­e­vate them to be the key de­ter­mi­na­tion of whether or not you passed the bar exam.”

Last week, the State Bar of Cal­i­for­nia re­leased its fi­nal re­port that found, among other things, that the num­ber of test tak­ers who were eth­nic mi­nori­ties or fe­male grew slightly. The study found no cor­re­la­tion be­tween these de­mo­graphic char­ac­ter­is­tics and the exam re­sults, ac­cord­ing to the state­ment.

“While these stud­ies did not sug­gest that changes to ei­ther (score or exam con­tent) should be made at this time, the State Bar takes se­ri­ously its com­mit­ment to en­sur­ing in­tegrity and fair­ness in the ad­mis­sions process,” Leah Wil­son, ex­ec­u­tive di­rec­tor of the State Bar, said in a state­ment.

THE CUT SCORE IM­PACTS REAL LIVES

Lily from San Fran­cisco took the Cal­i­for­nia bar exam three times and didn’t pass, de­spite rank­ing in the 80th per­centile on the mul­ti­ple-choice por­tion in the July exam. Lily asked to be iden­ti­fied only by her first name be­cause she is con­cerned her mul­ti­ple at­tempts at the bar exam may jeop­ar­dize her fu­ture em­ploy­ment as a lawyer.

Lily scored 137, and said she knows that if Cal­i­for­nia adopted the na­tional av­er­age score, she would be prac­tic­ing law by now.

“I have no doubt that I am com­pletely qual­i­fied to be a lawyer,” she said. “I know I would have been a re­ally good ad­vo­cate for vul­ner­a­ble peo­ple.”

Lily spent more than

$800 in tak­ing each exam, an amount that in­cluded reg­is­tra­tion fees and other costs like ho­tel stays. It did not in­clude test prepa­ra­tion classes that can cost stu­dents any­where be­tween

$1,000 and $5,000. Law school deans are aware of the fi­nan­cial strain, and wrote to the Supreme Court that stu­dents in­cur more debt re­tak­ing the exam, es­pe­cially since they are un­able to work in the pro­fes­sion.

“Al­though the bar re­sults are of­ten de­scribed in sta­tis­ti­cal terms, the choice of the cut score pro­foundly im­pacts real lives,” their let­ter said.

Lily works at a fundrais­ing depart­ment for an in­ter­na­tional or­ga­ni­za­tion, but wants to prac­tice im­mi­gra­tion law. She took law classes to pre­pare her for her fu­ture in court.

“I don’t think my law school pre­pared me enough for the bar exam,” she said.

But many law schools, con­cerned about lower pass rates, are fo­cus­ing too much on the exam to the detri­ment of stu­dents with in­ter­ests in spe­cial­ized fields, like cy­ber­se­cu­rity or in­ter­na­tional law, that are not on the bar exam, crit­ics say.

“Many are teach­ing for the bar rather than suc­cess,” Mnookin said. “It threat­ens to make le­gal ed­u­ca­tion worse, not bet­ter.”

More law schools also are struc­tur­ing classes in ways that sim­u­late the bar exam, Mnookin said. Some law school teach­ers who once al­lowed open book ex­ams are now giv­ing closed book ex­ams just like the bar exam.

“I’m skep­ti­cal,” Mnookin said of this lat­est change. “In the real world, most of the time (lawyers) can look things up. Real life is not a closed book test, you can check in with some­one. Of course you have to have the knowl­edge, but be­yond that you need judg­ment.”

John­son said he thinks Cal­i­for­nia should work to­ward a rea­son­able cut score, but said he hopes to avoid er­ro­neous claims that the State Bar is low­er­ing stan­dards.

“Rea­son­able stan­dards don’t mean lower stan­dards,” he said.

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