By Martin Pritikin
California’s most recent bar exam was historic — historically bad, that is. Just over 40 percent of takers passed, making it the worst performance in the exam’s 70-year recorded history. The figures are striking, but the trend is nothing new: pass rates have generally declined in California and nationwide since 2008. Determining the root cause will help determine what should change going forward.
In 2017, the Supreme Court of California commissioned several studies to investigate the bar pass problem in an effort to determine, among other things, if the exam content should be changed or the cut score modified. Perhaps not surprisingly, they concluded that the content was appropriate and that the cut score should not be changed.
But that was before the July 2018 exam results came out in November, and some law school deans have called for revisiting the cut score. It was also before the last of the state supreme court’s bar exam studies was released in December. That study used law school-provided data to figure out whether bar performance was declining because law schools were letting in weaker students once applications started shrinking following the 2008 Great Recession.
And the answer was…sort of. The report concluded that changes in credentials for entering law students — primarily LSAT and, to a lesser extent, undergraduate GPA-contributed to 20 to 50 percent of the decline in bar performance. In a classic glass half-full/half-empty split, critics of law schools use this to claim that weaker students are primarily the explanation, and decry proposals to make it easier for them to pass; while defenders will no doubt insist that we need to focus on whatever accounts for the other 50 to 80 percent of the decline. Interestingly, the study found little impact on bar pass rates based on which substantive courses law students take, or whether they participate in externships, clinics, or the like.
While the absolute decline in bar pass rates is troubling, a distinct but related issue is the disparity between pass rates in California and elsewhere. California’s pass rate is typically about 20 percentage points lower than comparable jurisdictions like New York. The difference in pass rates is not attributable to differences in the exam (half of both states’ test is based on the multiple choice Multistate Bar Exam), but rather to differences in cut scores.
California’s cut score of 144 is the highest in the nation (save for tiny Delaware, at 145). The national median is 135, and New York’s is 133. If California adopted New York’s cut score, the first-time pass rate would instantly increase by 20 points–without any changes to the population of exam takers or the legal education they receive. This disparity has existed long before the Great Recession or the decline in law school applicants.
Data from several years ago shows that if California were to lower its cut score to the national median of 135, minorities would see a greater relative increase in pass rates (as much as 125 percent for African Americans) than whites (43 percent). Some cite this to argue that maintaining an unusually high cut score is at odds with California’s stated aim of diversifying the profession.
My own institution, Concord Law School at Purdue University Global, founded over 20 years ago as the nation’s first fully online law school, finds itself at a curious intersection of the debate. The American Bar Association will not accredit a fully online law school, and California is one of the only jurisdictions to allow non-ABA law schools to operate, either through accreditation or “registration” (like Concord) with the State Bar. The primary goal of allowing these alternate categories of law school is to expand socioeconomic, racial, and geographic access to affordable legal education in the state and, hopefully thereby, legal services as well.
In one sense, then, California is quite progressive regarding entry to the legal profession. But at the same time, during debates about lowering the cut score, some members of the State Bar’s Committee of Bar Examiners argued that California’s bar pass rate is so low because it has so many takers from non-ABA schools. Not only is this belied by the facts–ABA takers outnumber non-ABA takers by a factor of five to one — it is misleading. If California had the same cut score as other states that didn’t have non-ABA takers, and still had a much lower pass rate, one could argue it was attributable to the non-ABA takers. But to start with a much higher cut score and then blame non-ABA takers for the pass rate being lower is simply faulty logic.
Until the California Supreme Court changes the bar exam or the cut score, what’s a law school to do? One obvious strategy is to take fewer students. But setting aside the budgetary implications for law schools (for which few will have much sympathy), restricting access to law school undercuts both diversity and legal access goals, and so must be pursued with caution.
Law schools must do even better in preparing their students for the bar exam and the profession. Schools like Concord face particular challenges, because their students, who are typically older professionals or have dependent care responsibilities, simply don’t have the time to study for the bar exam like traditional students.
But that hasn’t stopped Concord from doing what it can. In addition to incorporating a bar-oriented course into its curriculum and offering a steep subsidy on a commercial bar prep program, Concord recently undertook a major overhaul of its entire curriculum, integrating the latest in adult learning and distance learning research with recommended best practices in legal education.
Law schools have not often looked to learning science, just as most law professors have received no formal training in pedagogy. They owe it to themselves and their students to do so. Once law schools have done all they possibly can to prepare their students for the bar exam, then if pass rates in California continue to disappoint, the Court will no longer have its scapegoat to blame and face even more pressure to take action.
Martin Pritikin is dean of Concord Law School at Purdue University Global. He can be reached at martin.pritikin@purdueglobal.edu. The views expressed herein are the author’s alone.
