Legal Education

ABA Legal Ed council revisits admissions test requirement, tables bar exam standard

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Legal Education Section

Some law school deans may be breathing a sigh of relief after an ABA decision to table—for now—a proposed standards revision to tighten bar passage requirements for accredited law schools.

And another proposed standards revision supported by some deans to remove the requirement of a “valid and reliable” admissions test for accredited law schools was sent out for notice and comment by the council of the ABA’s Section of Legal Education and Admissions to the Bar, which met Friday in Boston. According to a synopsis on the ABA news site, the earliest the the proposal could be implemented would be fall 2019.

Recently, law schools at the University of Arizona, Harvard University, Northwestern University, Georgetown University and Washington University announced that they would accept the GRE in admissions test.

Not surprisingly, council members had a variety of views on both proposed revisions. The discussion on Standard 316—which has a proposed revision stating that to be in compliance with the rule, at least 75 percent of a law school’s graduates must pass a bar exam within a two-year period—was rejected by the ABA’s House of Delegates in February. It was sent back to the council with a request for more data regarding what the change would mean for diversity in the profession.

Under ABA rules, the House of Delegates can send a proposed rule back to the council twice for review with or without recommendations, but the council has the final decision on matters related to law school accreditation.

When the proposed revision went to the House of Delegates, it was opposed by members of the Hispanic National Bar Association, the National Black Law Students Association and the Association of American Law Schools Deans Steering Committee.

Under the current version of Standard 316, there are a variety of ways to meet its requirement. The simplest is that, for the five most recent years, at least 75 percent of those graduates who took a bar exam passed it. If for three of those years the 75 percent rate is reached, that also is acceptable. Some schools demonstrate compliance by having a first-time bar passage rate within 15 percentage points of the first-time bar passage rate of the state for which the school is required to report. In doing these calculations, schools have to account for at least 70 percent of their graduates, beginning with the state in which the highest number of graduates took the bar exam.

Barry Currier, the section’s managing director, has stated that no law school has ever been found to be out of compliance with the standard.

Initially on Friday, the council voted 9-8 to send the proposed revision back to the House of Delegates. Later, after a motion to reconsider and more dialogue, the council voted in favor of tabling the proposed revision so that additional time could be spent getting more support.

“I think if we could get more information it would be helpful. It’s not good for relations unless we find a better way to communicate, and not be received in a certain way. I felt it [at the House of Delegates meeting], and it didn’t feel good. We’re not convincing the people who support the diversity aims we have as a council to walk forward with us,” U.S. District Court Judge Solomon Oliver Jr., chief judge of the Northern District of Ohio, said Friday at the council meeting.

In June, the council surveyed law schools focusing on bar passage information. Ninety-two schools participated in the survey. Only three of the 92 schools had a pass rate below the revised standard’s 75 percent pass rate, according to an Oct. 20 memo from Currier. Accounts that the revision “would have an adverse impact on, perhaps, a large number of schools and, in particular, on the group of minority-serving schools or law schools located in California was not borne out by the data we collected,” Currier wrote.

Survey participants on the list (PDF) include the law schools at University of California at Berkeley, Howard University and Yale University.

For the proposed revision to the admissions test standard, the council considered three options and decided to send out for notice and comment the one that suggests eliminating Standard 503, which deals with the admissions test, and revising Standard 501. The revision to Standard 501, which requires admitting competent candidates, adds language about having a valid admissions test as factor for determining whether a law school is in compliance with the rule.

Concern about law schools taking advantage of the proposed revision, if implemented, was expressed by the council. Some members wondered if law schools might design their own admissions tests.

“Given what we’ve been going through in the past few years of law schools struggling to keep the doors open, this kind of makes me nervous,” said Raymond Pierce. He is a former dean of North Carolina Central University School of Law and now the chief education officer at the Global Teaching Project.

William Adams, Legal Ed’s deputy managing director, expressed that even if the admissions test requirement is eliminated, most law schools would likely continue to use a reliable exam because they want a good predictor of how applicants will perform in law school.

The current version of Standard 503 requires that law schools using alternate admissions tests demonstrate that the exams are valid and reliable. In March, another proposed revision to the standard, stating that the council would establish a process to determine the reliability and validity of other tests, was sent out for notice and comment.

Maureen O’Rourke, chair of the council, noted that the current standard for using admissions tests other than the LSAT is difficult for some, based on resources.

“It just seems to me unfair that a giant school who can put together a big psychometric study can do this, while a tiny law school is not going to have enough people to validate the study,” said O’Rourke, the dean of Boston University School of Law.

Also sent out for notice and comment by the council were proposed revisions to Standard 106, which deals with separate law school locations and branch campuses; and Standards 205 and 206, which address diversity, nondiscrimination and equal opportunity.

Additionally, a proposal to fold the section’s Accreditation Committee and its Standards Review Committee with the council was sent to notice and comment.

The council rejected a proposed revision to Standard 403, which would have modified the rule to require that only the first third of law school courses be delivered by full-time faculty. Support came from those in favor of offering law schools more flexibility, but concerns centered on whether the proposed change could harm legal education.

Samuel M. Chang, the council’s Law Student Division member, spoke against the proposed revision.

“Full-time faculty is important, particularly if we’re talking about Standard 316 … If you’re teaching to the bar, I’ve found that full-time faculty are much more aware of that. Adjuncts are important for networking and learning different parts of the law, but the basic parts of the law really require full-time faculty, and the basic parts of the law doesn’t end at the beginning of your second year,” said Chang, a student at the University of California’s Hastings College of the Law in San Francisco.

Also rejected by the council was a Young Lawyers Division recommendation to add two younger lawyers—who are either under the age of 36, or have no more than five years in practice—to the council as voting members.

One concern was that if the council adopted the YLD recommendation, what would happen when other ABA groups requested voting seats with the group?

Mathew Kerbis, the YLD liaison who presented the proposal to the council, responded that it depended on what percentage asked.

“The Young Lawyers Division and the Law Students Division is half of the association,” said Kerbis, a civil litigator with Chicago’s Condon & Cook.

There was also a concern that creating a special category on the council for young lawyers could reduce flexibility to find the best candidates available and willing to do the work. It was suggested that Legal Ed’s nominating committee could approach YLD leadership or feedback on candidates who express interest.

“I encourage the young lawyers, and all of us on staff, to try to figure out ways to get more folks who are closer to the beginning of their careers involved on site visit teams. That’s a primary credential for service on the council,” Currier said.

Last updated Nov. 10 to clarify reference to a synopsis on the ABA news site.

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