Poor bar passage rates threaten 10 schools

The American Bar Association has put ten law schools on notice for failing to meet its new bar pass standard. The standard requires that 75% of a law school’ graduates from the class of 2017 pass the bar within two years.

The standard is one of the more controversial moves by the ABA in recent years, as many critics argued it would have a larger impact on schools with larger minority student bodies. 

And that appears to be the case. The minority percent at nine of the ten schools is 20% or more. This includes Florida A&M University College of Law (71%), University of the District of Columbia David A. Clarke School of Law (67%), Western Michigan University Cooley Law School (43%) Atlanta’s John Marshall Law School (41%), Florida Coastal School of Law (36%),  Charleston School of Law (20%) and Mississippi College of Law (20%).

Two other schools — Pontifica Catholic Puerto Rico and Intra American Puerto Rico — are 100% Hispanic. 

The University of South Dakota School of Law is the only school with a lower percent of minority students (8.8%). 

The schools recently received notices that they are out of compliance and need to step up their games or possibly lose accreditation. The schools need to send a report to the ABA’s Council of the Section of Legal Education by Feb. 1, 2021, to demonstrate compliance. If the report in inadequate, then the schools are required to attend the council’s May 2021 meeting. Schools have two years total to comply. 

Many critics have complained about the unfairness of the standard. The Society of American Law Teachers (SALT) opposed the 2019 move, writing a letter to the ABA that read in part:

“Adopting the proposed standard will have substantial negative impact on HBCU [Historically Black Colleges and Universities] and other law schools with significant enrollment of people of color, including the law schools in Puerto Rico.”

The ABA argued that the threshold was not that difficult to meet and that it was needed to protect prospective students from entering a law school that fared poorly in such a key metric. After all, one can’t practice law if he or she can’t pass the bar. Before this change, law schools had five years to meet that 75% mark. 

Many of the schools have stated missions to diversify the legal field. These access schools are willing to accept students of color who likely would not get into most other law schools. With that, however, comes risk. Those students might not do as well on the bar as others. 

But the ABA’s action came with risk, too, argue critics such as the Clinical Legal Education Association (CLEA). 

“CLEA warned that the revised standard would create a significant risk of a decline of students of color in law schools, leading to an even less diverse legal profession,” said Kendall Kerew, CLEA’s president. 

She noted how there were 12 groups that opposed the new standard and asked that the ABA’s Council of the Section of Legal Education to not take such a drastic step without more input and study. 

Today, there continues to be pushback regarding the new standard, with a number of organizations, including SALT and CLEA, asking for the ABA to suspend it for a whole other — and unforeseen — reason.

That would be COVID-19. 

The pandemic has caused widespread disruption to this year’s bar exam, normally scheduled for July. And jurisdictions are hardly moving in lockstep. 

“The challenges of bar success will unquestionably become greater in light of the chaotic times we are living in,” said Renée McDonald Hutchins, dean of The University of the District of Columbia David A. Clarke School of Law, one of the schools not in compliance.

The school’s Class of 2017’s ultimate bar passage rate — the term used to describe a two-year span of testing — was 64.06%.

And there’s one other significant factor, and that’s the civil unrest that erupted after the killing of George Floyd at the hands of Minneapolis police officers. 

“Because UDC Law is an HBCU founded on a commitment to social justice lawyering, the national turmoil speaks to our students uniquely,” she said. 

So new graduates are facing unique and myriad pressures. 

“These are times like no other,” she said. “And I hope the ABA will consider the multiple and unprecedented stressors weighing upon graduates as it assesses compliance.”

Kerew noted how students of color not only face virus-related disruptions to their bar prep, they “face disproportionate levels of illness and death” from COVID-19. 

“These challenges most likely will negatively impact future bar passage rates for students of color,” she said. 

The ABA, in a press release, said for the Class of 2018 and beyond, the availability and timing of bar exams because of the pandemic will be a factor to be considered when it comes to the new standard.

Some argue that the ABA should reexamine its decision regarding the new standard because the 75% mark is not a good tool for determining success. There are too many variables at play, said Tamara F. Lawson, dean of St. Thomas University School of Law in Miami Gardens and chair of SALT’s committee on the regulation of legal education.

For one, jurisdictions have different bar exams. California has one of the nation’s most difficult, so California schools face a tougher challenge, she said. Even those states that use the Uniform Bar Exam have different cut scores, so a passing grade in one state might be a failing grade in another.

Traditionally it’s been harder for access schools to attain high ultimate bar passage rates because many of their best students, who are often racially diverse, are targeted for transfer after their first-year of law school, Lawson said. 

As transfer students, these same students who were denied admission as first-years, are now more attractive to schools because their LSAT scores are not reported in the ABA 509 data. The only data reported is their law school GPA — which is a high GPA — otherwise the student would not be a favorable transfer candidate in the first place. 

Additionally, high first-year law school GPA is a strong predictor of future bar passage, and therefore bolsters the transfer schools’ ultimate bar passage rate, while simultaneously negatively impacting the access schools’ reported ultimate bar passage rate. 

Lawson argues that if the ABA could calculate the success of these transferring students on the bar and factor that into the ultimate bar passage for the original schools they entered, they may very well clear the 75% hurdle.

“That could be one of the first steps [to reform],” she said.  

 

School 2017 Ultimate Bar Passage Minority Percentage
Atlanta’s John Marshal    67.32% 41%
Charleston School of Law 72.12% 20%
University of District Columbia  64.06% 67%
Florida A&M   70.83% 71%
Florida Coastal   67.29% 36%
Intra American Puerto Rico  64.49% 100%
Mississippi College of Law 72.64% 20%
Pontifica Catholic Puerto Rico 70.87% 100%
University of South Dakota  67.21% 8.80%
Western Michigan Cooley  66.01% 43%

 

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