ABA once again considers tightening bar passage standard

Next week, the American Bar Association’s policymaking body will once again consider a resolution requiring 75 percent of a law school’s graduates to pass the bar exam within two years. The revised standard protects students and the public and simplifies the existing standard, according to an ABA memo, but some California schools may have difficulty meeting the benchmark.

The same proposal was rejected by the House of Delegates in 2017, referring it back to the ABA’s legal education council for further consideration. This time around, however, even if the House votes the proposal down again, the council can move forward with the change after it has been considered by the House twice.

The standard in question, Standard 316, requires ABA-accredited schools to have 75 percent of their students pass the bar within five years or post a first-time pass rate within 15 points of their jurisdiction’s average. The revision would tighten bar passage and data collection requirements at a time when bar passage rates are declining nationally.

Based on data for the Class of 2015, 19 of the 202 ABA-accredited schools nationwide would have flunked the revised standard. Two of these were in California: Golden Gate University School of Law and Whittier Law School, which is soon to be defunct. Golden Gate was warned by the ABA in April that it was out of compliance with a different standard.

Dean Anthony Niedwiecki could not be reached for comment but said in a previous interview he was confident the ABA will be satisfied by the school’s increased admissions standards and lower attrition rate.

Kyle McEntee of Law School Transparency said, however, that his data analysis suggests schools with first-time bar passage rates under 60 percent might struggle to meet a 75 percent ultimate passage rate. In June, half of California’s ABA-approved law schools had a pass rate under 60 percent. More students failed than passed the June exam with a 40.7 percent statewide pass rate.

“Fundamentally, law schools should be held accountable for their bar passage outcomes. ... We need a bright line at somewhere sensible,” McEntee said.

Stephen Ferruolo, dean of University of San Diego School of Law, said he’s supportive of the revision and believes it’s a reasonable benchmark but is concerned about how California schools may be affected, given the state has the second-highest cut score in the nation.

“This standard would have more significant impact in California than elsewhere,” he said. “I don’t think that’s fair, and so I think those are things that need to be addressed as policy questions.”

The ABA’s Council of the Section of Legal Education and Admissions to the Bar, which brought the resolution, said in its memo that law schools should be assessed based on the success their graduates have on whichever bar exam they need to take to practice.

“Going forward, it will be up to schools to assure that their programs will achieve the modest outcomes required by the revised standard,” the memo states.

Regardless, it doesn’t appear California’s cut score will change anytime soon, and policymaking shouldn’t stall in the meantime, Ferruolo said.

“We shouldn’t be wagging the tail for the whole country holding up what I think is a reasonable standard,” Ferruolo said. “California needs to sort out its own issues.”

The House will meet in Las Vegas on Jan. 28, during the ABA’s Midyear Meeting, and also consider resolutions on opposing the authorization of teachers to carry firearms at school, urging the U.S. Department of Justice to rescind “zero tolerance” illegal immigration policies and urging legal employers not to require mandatory arbitration of discrimination or harassment claims.