ABA considering tougher bar passage standards

While bar passage rates are dipping steadily, the American Bar Association is considering amendments to Standard 316 that would reduce the time for law schools to show, for accreditation purposes, that enough of their graduates are passing a bar exam.

While the mandatory passage rate would remain at 75 percent for the time being, the Section of Legal Education and Admission to the Bar’s Standards Review Committee has proposed that the timeframe be reduced from five calendar years to two.

A school must pass one of two tests in order to comply with standards as currently written. It must, over five years, either maintain an ultimate bar passage rate of 75 percent or have at least 75 percent passage for three of the five years. Alternatively, it can demonstrate a first-time passage rate of no more than 15 percent below the pass rate of all ABA-approved graduates in the same jurisdiction for three of the five years.

Five years is too long, the review committee says, and studies show that 99.9 percent of those who pass a bar exam do so within their first four attempts. Further, the alternative test should be eliminated, according to the committee, because “the question of accreditation should be based on the performance of the graduates of a law school without comparison to the graduates of any other law school.”

According to the Georgia nonprofit Law School Transparency, an organization geared toward making entry to the legal profession “more transparent, affordable, and fair,” incorporating the proposed changes will close several loopholes currently exploited by law schools in calculating and reporting their bar passage rates.

“The ABA is uniquely situated to protect the profession and public by holding law schools accountable,” LST asserts on its website.

Consideration

During a February meeting in New Orleans, the Standards Review Committee decided, among other things, that Standard 316 should be “tougher but simpler.” In addition to the aforementioned proposals, the committee has also suggested that a school’s ability to report its ultimate pass rate based on only 70 percent of its graduates be eliminated. Rather, schools should account for as many graduates as possible.

In a memorandum to the council, committee Chairman Scott Pagel wrote that while a first-time pass rate is important for consumers and should continue to be disclosed, the committee’s belief is that “for the purposes of accreditation, an ultimate pass rate is the more appropriate measure of whether a school is operating a sound program of legal education, and it is not subject to the idiosyncrasies that can be found with a reliance on the pass rate of first-time takers.”

After a March 11 meeting, the council is expected to send out revisions for notice and comment, and decide in June whether to approve, alter or table the revisions. If approved, the changes would proceed to the ABA House of Delegates. Even if the standards are not approved there, however, the council could still “reconsider and finalize approval.”

Why the change?       

Over the last few years, law schools across the country have seen a decline in student applications, including schools in the Carolinas — although Duke, for instance, has reported an increase. In response, many schools have relaxed their admission standards in various ways, some opting to accept lower LSAT scores or even do away with the LSAT requirement entirely. This has led to what many consider a lower caliber law student.

According to a recent Law School Transparency report, students who score less than 150 on the LSAT are considered a fairly high risk for failing the bar exam.

Numerous reports and articles have cited the enrolling of seemingly less-capable students as one possible explanation for the decline in the number of graduates who actually pass a bar exam.

Some of these practices, adopted by law schools in the face of financial pressure, LST says, are “likely to erode the public’s trust in the legal profession.”

Dean Jay Conison of the Charlotte School of Law said that it’s tough to put a finger on any one failure factor, but admitted an “increased concern with our bar outcomes, because our outcomes are declining.”

Charlotte, a for-profit school within the InfiLaw consortium, has been known to be a viable option for students with less-than-stellar LSAT scores and undergraduate GPAs.

“On one hand, we’re a school of opportunity. We don’t accept anyone we think can’t succeed, but we take students who need a lot of work,” Conison said. “It’s a delicate balance to strike.”

Conison said that the school has accepted students who lack competencies, such as writing and critical thinking, that are crucial to law school success.

“It’s left to the law schools to [teach these competencies] but how are you going to make up 20 years in three?” he said. “Sixty percent of the bar in North Carolina is essays—you have to be able to write.”

According to school officials, they have begun keeping a close eye on students who show early warning signs.

“We’re doing something that we really didn’t do before; we’re going to dismiss students after the first semester,” Conison said. “We want to give people a chance, but if your performance is at a certain level, then we really believe that it would just be a disservice to allow you to continue.”

Those students, Conison said, would be free to reapply after taking some time away from the school.

Conison said that while having its graduates pass the bar has always been a focus, the school that prides itself on producing practice-ready attorneys last year turned a great deal of its attention to helping its students prepare for the exam.

Some of the newly implemented measures Conison spoke about include mock bar exams; required, intensive bar-readiness courses; and an improved post-graduate bar prep course.

He added that the school is taking steps to instill a couple of intangibles he feels are paramount to success: motivation and perseverance.

“One of the biggest gaps I see is an absence of grit,” Conison said. “I have two sons and they are both pretty intelligent, but I told them early on, smart people are a dime a dozen but to succeed, you’ve got to work really, really hard.”

 Charlotte not alone

Like Charlotte, the Charleston School of Law has experienced a recent decline in its bar passage rate, raising some concerns. Dean Andy Abrams, like Conison, has partially attributed the results to the attrition of star students who transfer and pass the bar exam under another school’s banner.

High-profile unrest and uncertainty over whether Charleston would be sold to InfiLaw could have played a role in transfers, Abram said, and generally served as interruptions.

“Clearly the disruptions and distractions can’t help, but as to what specific thing caused an individual student to pass or fail the bar, we haven’t even talked to the students,” Abrams said. “It’s what we consider a mediocre score and something we want to see improved.”

But unlike Charlotte, Charleston officials say that while they will add an additional person to help with bar preparation, they don’t plan on revamping their methodologies.

“Regardless of the change and the standard, we’re always—like all law schools—looking for ways to help ensure the success of our students and our grads on the bar exam,” said Margaret Lawton, Charleston’s associate dean for academic affairs.

Over the last two years, Charleston’s student pass rate for the South Carolina bar exam is a little under 60 percent, but Lawton believes that the school’s overall bar passage rate is increased when including exams taken in other states.

Over the same time period, roughly half of North Carolina Central University School of Law graduates have passed the North Carolina bar exam, but dean Phyllis Craig-Taylor said that she has had no “red-alert moments” when crunching all the pass-rate numbers from in-state and out-of-state exams.

“North Carolina Central is going to be fine,” Craig-Taylor said. “It just doesn’t appear that once we get past two or three tests, we have a problem. That doesn’t mean that alleviates all of my concerns … I have to make sure that we are meeting whatever standard is adopted in the future.”

In striving to meet its self-imposed standard of seeing every graduate pass the bar, Craig-Taylor said that the school has hired a full-time bar preparation director and invested “substantial resources” into its initiatives.

“We have anticipated the change. We’ve adopted new courses students will take while they are in school,” Craig-Taylor said. “We’ve created the new bar passage program that they will take the semester before they graduate and we are providing additional support to our students—each and every one of them—to help cover the cost of the actual bar preparation course, hoping to alleviate some of the financial strain.”

All things not equal  

Craig-Taylor believes that the proposed changes are inspired by heavy media coverage of law graduates’ debt load coupled with the desire to create a bright-line test uniformly applied to all accredited schools.

But while the standards may be uniform and appear objective on paper, there are many variables, she says. Bar exams are different. Millennials test differently. Some students and schools face different challenges.

“If you are an institution that’s committed to diversifying the bar and a large portion of your population is a minority population, it means that you’re also admitting people that may come from lower wealth households,” Craig-Taylor said. “Being able to take two months and fully focus on preparing for the bar exam is a financial hurdle.”

Further, Craig-Taylor said, some of these students may not test well after absorbing societal expectations that they will not.

“Some are extremely anxious during the bar exam,” she said. “When you take all the other factors out for the schools to demonstrate what they’re doing and you essentially equate quality with a number on bar passage, I do think that it really limits a full review of the quality of the program.”

Will there be trouble?

According to Bill Choyke, senior strategist with the ABA’s Communication and Media Relations Division, no school has ever lost its accreditation due to subpar bar passage. But some, he said, have “closed, merged, sold assets.”

Choyke said the ABA would not speculate, even hypothetically, on a particular school’s situation, so it’s unclear whether bar passage rates for any of the Carolinas’ institutions have caught the ABA’s eye.

If it were up to the nonprofit LST, the ABA would “vigorously enforce” the standard and “waste no time withdrawing accreditation” from a school which violates the requirements, but Choyke added that at this point, before any revisions are even approved, it is unknown how the ABA would approach a school that failed to comply with new standards.

Charlotte School of Law’s Conison said he hopes to see an upward trend beginning with February’s exam, regardless of what the expectations end up being.

“It is probably good to keep in mind that the proposed change in 316 is still in the early stages, and that even if the council endorses it, there are details to be worked out,” Conison said. “On the whole, though, the move to a less complex standard based on ultimate bar passage is generally a good move.”

Follow Heath Hamacher on Twitter @SCLWHamacher