August 08, 2016

Bar passage proposal underscores tension between consumer protection and diversity concerns

A proposal by the ABA’s law school accrediting body to simplify the bar passage standard was roundly criticized at an Aug. 6 hearing for threatening the diversity of the legal profession, although most of the dozen critics acknowledged the difficulty of balancing consumer protection of students with the goal of bringing more minorities into the legal profession.

The ABA Council of the Section of Legal Education and Admissions to the Bar convened the hearing at the 2016 ABA Annual Meeting for comment on its March proposal. The recommendation would simplify and amend Standard 316 to require that the graduates of a law school in a particular calendar year who sit for a bar exam pass at a rate of 75 percent or higher within two years of their graduation. While first -time bar passage rates would continue to be collected and reported as a matter of consumer information under Standard 509, the focus for accreditation of law schools would be the school’s “ultimate” bar pass rate measured over a shorter, two -year window.

But speakers at the hearing said such a standard would adversely affect those law schools with significant diverse enrollments because black and Hispanic students from lower-income households have historically had more difficulty passing the bar exam, administered by the National Conference of Bar Examiners twice a year. They said 22 law schools have at least a third minority enrollment and the change would have a chilling effect on those schools with an “access mission.”

They also said that the proposal undermines the diversity goal stipulated in Standard 206 of the Council, the national accrediting body under U.S. Department of Education contract, as well as ABA Goal III, which is to eliminate bias and enhance diversity in the profession.

Beverly McQueary Smith, a longtime educator involved in a number of national law groups, said “all too often the disproportionate number” of students failing the bar exam are minorities who as students “begin the race of academic success 50 yards back” from students in more well-funded school districts. In short, she said, “educational outcome is determined by your zip code” and the “the proposed revision … is not narrowly tailored to address” the problem of low bar passage scores.

The proposed change comes at a time when many law schools – and the ABA because of its singular national accreditation role – are being criticized for enrolling and graduating too many law students who cannot pass the bar exam. The standard now incorporates a complicated formula related to first-time bar passage rates and an “ultimate” rate over five years and no school has had its accreditation revoked because of failure to achieve Standard 316.

Another factor cited by critics in asking the Council to move gingerly in this area is the growth of the Uniform Bar Examination, which the ABA at its Midyear Meeting in February embraced through a House of Delegates resolution at the behest of the ABA Law Student Division. More than two dozen states have adopted the UBE, and it is likely that more will do so.

The Council, which put the proposal out for comment in March, initially considered finalizing it at next meeting in October. But that decision might be delayed. Any final proposal would go before the House of Delegates, the ABA’s policy-making body, but the ultimate decision rests with the Council under its rules and agreement with DOE.

Separate but concurrent with the bar passage rate debate, DOE is considering a recommendation by its National Advisory Committee on Institutional Quality and Integrity, which in June recommended a one-year limitation on the Council’s ability to approve new law schools and programs. Members of NACIQI, as the DOE advisory group is known, harshly criticized the Council for not coming down harder on schools that have a significant number of students failing the bar exam while shouldering debt often in the six figures.

Several speakers at the Aug. 6 hearing acknowledged the sticky situation the Council faced, and urged it to study the matter of bar passage rates more comprehensively before making such a significant change. They said the Council relied primarily on a study that lacked transparency and peer review.

Patricia E. Salkin, outgoing dean of Touro Law Center in New York, pointed to the UBE given in July in New York for the first time in urging the Council “to slow down so we can collect data.”

“We have no idea what the new normal will be,” she said regarding the effect of UBE on bar exam scores.

Denise Roy of the Society of American Law Teachers summed up the argument of the opponents this way: “There’s just too much that we don’t know” and the risks and stakes are “too high to take that risk.”

While the Council has received written comments in support of the proposal, no one spoke in favor of it at the two-hour hearing.