Washington lowers bar pass score retroactively as NextGen set to debut in July
As it prepares for the introduction of the NextGen Uniform Bar Examination, the Washington Supreme Court lowered the state’s bar pass score—including for those who have sat the exam since July 2020, according to an order issued Monday.
The order stated that the state’s legacy UBE passing score, which had been set to 266 since July 2020, would be lowered to 260 on the advice of the state’s three law school deans. The court also held that any examinee who has sat for the exam since July 2020 and received a score between 260 and 265 would now be allowed to apply for admission.
The new passing score was found to correspond to the NextGen UBE’s minimum passing score of 610. Washington is set to switch from the legacy UBE to the NextGen UBE starting in July, and the order states that it wishes to keep parity between the two exams’ passing scores. Washington is one of 10 jurisdictions set to administer the exam next year. To date, 47 jurisdictions plan to adopt the skills-focused exam.
Last month, NCBE announced a suggested range of NextGen UBE passing scores between 610 and 620 on a scale of 500 to 750. The legacy UBE has passing scores ranging from 260 to 270 on a scale of 200 to 400.
“This may signal a welcome trend towards setting a more uniform score nationally,” Deborah Jones Merritt, professor emerita at Ohio State University Moritz College of Law and co-principal investigator of the landmark 2020 report Building a Better Bar, wrote to the ABA Journal. “Courts may also be focusing on the fact that bar passing scores are set to establish minimum competence and that higher scores restrict access to justice.”
“Lowering the cut score is the right response,” says Susan Smith Bakshian, director of bar programs at Loyola Law School in Los Angeles. “The Washington Supreme Court deserves credit for saying what others have ignored: These examinees will lack the preparatory resources they have historically relied on.”
Tamara Lawson, dean of the University of Washington School of Law, says the court’s decision was “appropriate” based on the NCBE’s data regarding minimum competency standards. “Washington continues to be a leader in the spaces of access to the legal profession while continuing to keep high standards,” she adds.
The move to the NextGen UBE might prompt other jurisdictions to take a fresh look at their pass score. “Washington is the first jurisdiction to set a NextGen passing score that is not equivalent to its [previous] legacy passing score,” Judith Gundersen, NCBE president and CEO told the ABA Journal. “It’s possible that some other jurisdictions will do the same.”
Washington’s court not only chose 610 for the upcoming exam, it made the legacy UBE rough equivalent retroactive to July 2020.
Those “who received a UBE score of 260-265 may now apply for admission based on that score, and all applications must be made within one year of the date of this order,” the order states.
“I especially applaud the Washington Supreme Court for applying the score retroactively,” Merritt says. “There’s no reason to hold recent applicants to a higher standard than current ones.”
In July, 780 candidates took the exam in Washington, and 71.54% passed, according to the Washington State Bar Association. The court order does not spell out how many previous candidates now will be eligible to apply for licensure.
“There is now a duty for the state bar to proactively generate a list of impacted examinees and contact them within the one-year time period,” says Nachman N. Gutowski, associate professor and director of the academic success program at the William S. Boyd School of Law at the University of Nevada, Las Vegas.
“The biggest impact is the realization by the state supreme court that the range of scores for competency is problematic and that there is no logical reason to vary them,” says Gutowski, who is co-author of “Breaking the Cycle: Rethinking Bar Exam Scoring and Portability for NextGen Examinees,” a forthcoming law review article. “Competency on the bar, if such a thing is to be believed with a straight face, cannot be a sliding scale based on where someone is geographically located when they take the exam.”
Carrie Sanford, director of academic success at the University of Washington School of Law, says the school on Tuesday had emailed its recent graduates who now will have passed the bar exam. Many of them were set to try again.
“I could say, you could stop studying now, and that’s wonderful news,” she says.
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