Legal ed council approves stricter ABA standard for bar passage rates amid diversity concerns
A proposal to tighten bar passage rate standards for ABA-approved law schools was passed Friday by the council of the Section of Legal Education and Admissions to the Bar.
Under the proposal for Standard 316, 75 percent of the graduates must pass a bar exam within a two-year period. The proposal is expected to go the ABA House of Delegates in February 2017. Most council members voted in favor of the proposal; an exact vote count was not available at press time.
With the current standard, there are various ways a law school can be in compliance. One is that that at least 75 percent of graduates from the five most recent calendar years have passed a bar exam, or there’s a 75 percent pass rate for at least three of those five years. Also, a school can be in compliance if just 70 percent of its graduates pass the bar at a rate within 15 percentage points of the average first-time bar pass rate for ABA-approved law school graduates in the same jurisdiction for three out the five most recently completed calendar years.
No accredited law school has been out of compliance with the current “ultimate bar passage standard,” Barry Currier, the ABA’s managing director of accreditation and legal education, told the council.
At an August hearing (PDF) about the proposal, various groups, including the National Black Law Students Association and a group of law school deans from institutions associated with historically black colleges and universities, expressed concern with how the proposed change could decrease diversity in the profession.
Greg Murphy, a Montana lawyer who chairs the council, stated the groups’ testimony included only anecdotal information and no data that backed up concerns expressed.
Diane Bosse, a New York-based council member, noted that New York broke out by race ABA-accredited law school graduates who took the state bar, and at no point did any of the groups’ first-time test taker pass rate fall below 75 percent.
Tests historically have been used to deny people in the black community opportunities, said council member Raymond Pierce, the former dean of the North Carolina Central University School of Law, which is associated with a historically black university. But he also noted that none of the country’s law schools associated with HBCUs are currently out of compliance with ABA accreditation. Over the years, Pierce said, he has noticed that many law schools opposed to minimum bar passage standards are not HBCUs.
“They were law schools that had bad bar passage rates and were putting HBCUs out in front. I’m offended by that,” says Pierce, a former deputy assistant secretary for the U.S. Department of Education who is now the chief education officer of the Global Teaching Project.
“HBCU law schools, we all started as institutions of opportunity because we were denied opportunities. These schools remain schools of opportunity, but it’s a little bit different,” said Pierce, who voted in favor of the proposal. “A law school should give a young man or a young lady an opportunity, but you don’t give them a false chance.”
Various council members acknowledged a tension between only admitting people who law schools think will be able to pass a bar exam, and meeting the 75 percent bar passage requirement.
“If we have schools that are taking in students who can not pass the bar, and they are not members of our profession, that is a concern. I think we have some accountability to those students,” said Cynthia Nance, a council member who voted against the proposal. Nance, a professor at the University of Arkansas School of Law who previously served as the school’s dean, added that if someone failed the bar exam, they may want to wait a bit before they try again.
Within the proposal’s time frame, there would be four opportunities for a law school graduate to pass a bar exam.
“Some would say that we as a council are not doing our jobs with respect to policing law schools, and there are some schools that are taking in students they know will have very little possibility of passing the bar and being admitted into the profession. They’re accumulating large amounts of debt that they have no way to pay back,” said Maureen O’Rourke, the council’s chair elect and the dean of Boston University School of Law.
A challenge for the council, she added, is that its tasked with enforcing standards,which for the most part are not rules.
“Standards by their nature are fuzzy and hard to enforce,” said O’Rourke, who voted in favor of the proposal.