State Bar to reconsider change in exam pass rate calculation

The Committee of Bar Examiners is reconsidering its decision earlier this year to change how it calculates the California bar exam pass rate in a way that slightly increases the figure.

One of the issues that has arisen is state-accredited law schools are required to calculate their pass rates for accreditation purposes using the State Bar committee’s previous approach.

The bar examiners decided in April that those who start, but do not complete the attorney licensing test, will no longer be included in the pass rate calculation.

Bar officials have said the change, which came in the midst of scrutiny concerning falling success rates on the exam, was designed to boost the accuracy of the statistic.

However, current guidelines for state-accredited law schools mandate the inclusion of all bar takers, including non-completers, when calculating exam passage rates they report to the bar committee.

Gayle Murphy, the bar’s senior director for admissions, said at a Dec. 1 bar examiners’ meeting that she was leaning toward recommending the panel rescind its new policy for determining the overall pass rate.

“In a lot of ways it would be a lot easier to just go back to [including] takers,” Murphy said.

“We didn’t really understand at that time how far-reaching this decision was,” she added.

Erika Hiramatsu, chair of the bar examiners, said at the same meeting she would like to see consistency in the way the bar and the schools calculate their pass rates. Deans of state-accredited schools said in interviews that they agreed.

“If they made the decision to change to only including completers because they believed it is a more accurate representation, it seems bar pass rates across the board should use completers,” said Jackie Gardina, dean of Santa Barbara & Ventura Colleges of Law.

The bar examiners require state-accredited law schools to maintain a 40 percent bar passage rate for the preceding five-year period.

Mitch Winick, dean of state-accredited Monterey College of Law and its two branch campuses, said the bar’s decision on how institutions must calculate the pass rate “really matters the most for small schools like ours.”

His Monterey school typically has 9-10 first-time takers on each test, he said, so removing a non-completer from the pass rate calculation could cause a significant shift.

The bar examiners halted enforcement of the bar passage rule in June 2016 due to the bar saying it could no longer provide pass/fail lists to schools as a result of legislation.

A bill Gov. Jerry Brown signed into law this fall, SB 690, permitted the bar to again share such data retroactively.

That development led to the bar examiners voting Dec. 1 to lift the suspension of the bar passage rule and require pass rate reports from law schools 60 days after the committee determines which graduates should be included in those documents moving forward. The bar examiners are expected to discuss the issue again in February.

The information the bar recently provided to schools outlining their graduates’ performance on the California exam the last two years did not include a breakdown of whether a taker completed the test or not, according to bar spokeswoman Rebecca Farmer.

The bar examiners decided in April that for an exam to be considered complete, test-takers must have achieved a grade of at least 40 on their answers to the five essay questions and one performance test. A test-taker must identify the subject matter of the question to receive a minimum score of 40.

The American Bar Association’s legal education council has not addressed the issue of whether schools it accredits should include non-completers in their bar passage reports nor is the topic covered in the association’s instructions on such reporting, said Barry Currier, the ABA’s managing director of accreditation and legal education.

ABA-accredited schools must prove that 75 percent of their bar exam takers have passed within a five-year window.

“If asked, I would advise a school to report to the ABA data that is consistent with reports a school receives from the state bar admissions office,” Currier said in a statement. “If the state includes non-completers in a list of ‘non-passers,’ then the school should do the same.”

The California bar’s decision not to include the 66 people who started, but did not complete the July 2017 test, increased the pass rate from 49.2 to 49.6 percent. Not including the 78 non-completers on the February exam raised the pass rate from 33.9 to 34.5 percent.

The applicants who started the exam, but did not complete it, were sent fail letters, Farmer said.

Murphy, who is retiring later this month, told the bar examiners that those non-completers would also be considered repeat takers in the bar’s system if they sought to take the exam again. She said that was another issue not contemplated when the committee made the pass rate calculation change.

“If they aren’t considered having taken the exam the first time, then they are not really a repeater, but they are showing up as repeaters,” Murphy said.

Winick said a graduate’s status as either a first-time passer or repeat passer could impact that person’s job prospects. A graduate recently reported that he had seen legal job listings in large communities seeking only first-time bar passers, Winick said.