July 01, 2016

Proposed Changes to the Bar Pass Standard and to Foreign Site Visit Requirements

The Honorable Rebecca White Berch
Justice (retired), Arizona Supreme Court
2015-2016 Council Chair

The Section of Legal Education and Admissions to the Bar has both accreditation functions and “section” functions. Although most of the attention the Council receives relates to its accreditation work, the “section side” has been quite active. I encourage you to read Erin Ruehrwein’s excellent article in this Syllabus for an update.

The Council has been busy as well. Most notably, the Council has published for notice and comment changes to the “bar pass” standard, Standard 316. The proposed new Standard provides as follows:  At least 75% of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.

How does this differ from the existing Standard?  First, it is simpler, clearer, and more straightforward. The existing Standard is a page and a half long, single-spaced, and contains exceptions and opportunity for delay. The proposed one is one sentence. It effectively looks at a school’s ultimate pass rate for a class two years after its graduation. While consumers will certainly be interested in initial bar pass rates, they will continue to have access to that information because it is – and will continue to be – a required disclosure under Standard 509.  

The revision eliminates existing exceptions and effectively shortens the time for determining whether a school is in compliance with the Standard. It also dispenses with the need to determine how a school’s pass rate compares to a statewide average. Under the current rule, a school can show compliance with Standard 316 if its passing score is within 15 percentage points of the statewide average. But some states have only one or two law schools. In such jurisdictions, a school’s test-takers likely set, or play a large part in setting, the statewide average, making it virtually impossible for those schools ever to fail to meet Standard 316, even if their students pass the bar at a very low rate. Such a standard, in these situations, has no rigor at all.

The existing Standard also takes a long time before enforcement can commence. It permits a school to show that scores for classes in three out of five years achieved a 75% passing rate. [316(a)]. If a school falls below this pass rate, it may then have as much as two years to bring itself into compliance. [Rule 14(b]). Even then, additional time may be granted for “good cause shown.”  [Standard 316(c), Rule 14(c)]. This effectively gives a noncompliant law school more than five years to come into compliance. Such an extended grace period may not be unreasonable if a school’s pass rate hovers just below 75% or is trending up. It is quite another thing – and ineffectual oversight on our part – if the school’s pass rate falls well below 75% and shows no signs of improvement.

So the proposal remedies two defects in the current rule:  it eliminates situations in which a school simply cannot fail to meet the Standard because the school sets or substantially contributes to the statewide pass rate, and it reduces the time for determining compliance from more than five years to two years.

Expecting graduates of ABA-approved law schools to be able to pass a bar exam within two years is reasonable. Data show that those who fail the bar exam more than once persist in taking the bar exam at a rate of less than 5%. In fact, most stop taking the bar exam after two tries, though nothing in this proposal prevents applicants from taking the exam as many time as the most generous jurisdiction permits. But waiting until all but the most perseverant take the exam to judge a school’s compliance is not effective regulatory practice. If potential law school applicants are to be protected, the Council and Accreditation Committee must initiate timely action against schools that are not satisfactorily preparing graduates to pass the bar exam.

To those who worry that the two-year period for coming into compliance has been removed: relax. Rule 14(b) continues to exist and sets forth the process for seeking an extension.

As written, the proposed Standard does not require law schools to account for 100% of their graduates or even 100% of their graduates who sit for the bar. We recognize that in every class there may be some who don’t wish to practice law and so choose not to sit for any bar exam and a few others who are simply difficult to track down. Instead, the schools need only show that 75% of graduates have taken and passed the bar exam.

Finally, a word about diversity. The 75% passing standard applies to law schools, not to individual applicants. Thus, the proposal should not affect the chance for any applicant to practice law. It does not change the pass rate in any state and has no effect on the number of times an applicant may sit for the bar exam. Those matters are left to the jurisdictions to determine. It simply says that, for purposes of determining law schools’ compliance with Standard 316, the Council and the Accreditation Committee will look only at the ultimate pass rate two years out. Students are free to keep trying to pass the bar.

As noted, the pass rate remains at 75% under the new proposal. That rate was chosen years ago for a number of reasons, and it reflects a considered judgment by the Council that balances the need for rigor in enforcement of legal education standards with the need to foster diversity in the profession. So the 75% rate was retained as a reasonable accommodation of these competing interests.

Some may worry that “schools of opportunity” – that is, those whose mission includes offering opportunity to become a lawyer to members of historically underrepresented groups – will be disadvantaged. But that should not be the case. The Council must balance the provision of opportunity against the need to protect from exploitation applicants who do not appear reasonably capable of satisfactorily completing a school’s program of legal education. See Standard 501. We endorse the vision of these schools. But it is important that in offering opportunity, we do not permit students who do not have a realistic chance of actually becoming lawyers to be taken advantage of. We want these students to be well educated, to be able to pass a bar exam, and to actually join the profession. So if the new Standard encourages schools who admit students with low academic indicators to do more to help their students succeed – whether through academic support, mentoring, or otherwise – isn’t that a positive outcome?

The proposed revisions, along with explanations, are published on the Notice and Comment page of the Section’s website. 

Foreign Program Site Visits

At the June 2016 meeting, the Council voted to eliminate site visits to a school’s foreign summer programs if those programs are offered only to the school’s own students. The Council reasoned that the annual questionnaire and sabbatical school visits – and the school’s own interests – should ensure adequate oversight of such programs. Moreover, the Council has suspended foreign site visits to foreign programs that have been twice reviewed and have had no significant issues. These changes should save schools money and the time and effort of preparing for such visits. We thank the Accreditation Committee and its chair, Professor Rebecca Hanner White, for their work in bringing this proposal to the Council.

2016 Kutak Award

Finally, the Council wishes to congratulate former Council member and liaison Pauline Schneider who has been selected as this year’s winner of the Robert J. Kutak award. Kudos, Pauline. The award and recognition are well deserved.