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Should state adopt lower passing score for the bar exam? Current one may harm students of color

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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 67-year 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 entry-level 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-to-day 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.

This story was changed Jan. 8 to clarify that the California Supreme Court, not the State Bar, declined to modify the bar exam cut score after the bar conducted studies.

UC Davis law student Apurva Behal has worked in the school's Immigration Law Clinic for the last year, representing clients as they fight detention and deportation. For Behal, the hands on experience that she has gotten has been an invaluable help

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Sawsan Morrar covers school accountability and culture for The Sacramento Bee. She grew up in Sacramento and is an alumna of UC Berkeley Graduate School of Journalism. She previously freelanced for various publications including The Washington Post, Vice, KQED and Capital Public Radio.
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