The ABA House of Delegates vote on the proposed new bar passage standard for law schools, ABA Standard 316, at the ABA mid-year meeting this week in Miami. This is an enormously important vote with significant repercussions for legal education and the legal profession. I strongly support the proposed standard and urge those with a vote to approve it.
Since 2010, law school applications have dropped about 40%. In an effort to fill classes, the overwhelming majority of law schools, even our most selective institutions, have lowered their admissions standards. This has meant that it is much easier to get into an elite law school than it has been in decades. As top 20 schools have accepted students that, in a more competitive era, used to go to top 50 schools, top 50 schools are now admitting students that used to go to the schools ranked from 50-100. In turn, these second-tier schools are taking the kinds of students who used to attend third-tier schools, and third-tier schools are actively recruiting students with grades and test scores that would have landed them at an unranked fourth-tier school five years ago. But for the fourth-tier schools, those in the bottom quarter by selectivity, there was no lower-tier of schools from which to cherry pick students. These schools, many of which characterize themselves as “opportunity” schools, were already admitting many moderate to high risk students and had little, if any, room to go lower. Their admissions standards, in most cases, used to be carefully and honestly calibrated to admit only students with a reasonable chance of success in law school on the bar. In 2010, with perhaps a couple of exceptions, almost all ABA-Accredited law schools were complying in reasonably good faith with ABA Standard for Admissions 501, which mandates that a law school “shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar.” Because law schools, by and large, followed this stricture, a very high percentage of students who were admitted to law school completed their degree and passed the bar. So, in 2013 (when most students who started in 2010 took the bar), 81% of graduates of ABA-Accredited Law Schools passed the bar exam on their first try. Even in California, infamous for the difficulty of its bar exam, 71% of ABA grads passed on their first attempt.
Sadly, it is no longer the case that almost all law schools are complying in good faith with Standard 501. Dozens of law schools are now admitting substantial numbers of students at very high or extremely high risk of failure. As a direct result of significant declines in admission standards, law school attrition rates are up, and law school bar passage rates are way down. At a few of the least selective law schools, fewer than one in three students who start law school can expect to graduate and pass the bar the on the first try, and many will never pass, leaving them saddled with huge debt and little prospect of earning enough to recoup their investment. That is unacceptable in a profession that purports to hold itself to high ethical standards, and it fuels the increasingly widespread perception that law school is a scam.
The ABA Standards on Admission and Bar Passage are supposed to work in concert. The Admission standard is a non-exploitation standard. It is designed to ensure that students without a reasonable chance of success are not taken advantage of by schools willing to take their tuition. The Bar Passage standard is designed to ensure that students get what they are promised and what they are paying for – a legal education that adequately prepares them for the practice of law and gives them the knowledge and skills required to earn admission to the bar.
If a law school admits only applicants who are capable of earning a J.D. and passing the bar, and the law school is providing those students a sound legal education, designed, at least in part, to prepare students to pass the bar, then a school should have a bar pass rate where a substantial majority of students pass the bar. Based on my analysis of recent pass rates for repeat takers, a law school with a 60% first time pass rate will be able to meet the new standard of 75% passing within two years of graduation. Every ABA-Accredited law school in America should have at least a 60% first time bar pass rate. But right now, many don’t. And that is why there is significant opposition to the new standard. Nearly half the law school Deans in the country recently signed a letter asking the ABA to hold off on the new standard. Many of these Deans have good reason to be worried. The Deans know that the weakest class ever admitted to most law schools was the class of 2014, the class about to graduate and take the bar this summer. And at many schools, the classes of 2015 and 2016 were just as weak or weaker. Based on the results on the bar exams in 2015 and 2016, and the strength of the classes in the pipeline, between 20 to 30 law schools will likely have a first-time bar pass rate in 2017 of below 60%, placing them in jeopardy of not making 75% within two years.
The fact that a number of law schools are likely to be unable to meet the standard is not a reason to defer or withdraw the standard. The standard needs to be made tougher immediately because the current standard has proven completely ineffective as a means of regulating either admissions or the quality of legal education. In fact, while bar passage rates have dropped sharply over the past three years, with many law schools posting first-time pass rates well below 50%, not a single ABA-Accredited law school has been found to be out of compliance with the current Standard 316 during that time.
The ABA has recently started to crack down on law schools with exploitative admissions standards, ordering specific remedial action at Ave Maria, publicly censuring Valparaiso, and placing Charlotte on probation for non-compliance with Standard 501. In addition, the ABA declined initially to grant provisional accreditation to UNT in part over concern about non-compliance with Standard 501. But these actions have not deterred many other schools from admitting students with similar credentials to those that the ABA has found did not meet Standard 501. In fact, as detailed in a just-released update to Law School Transparency’s State of Legal Education, there are more law schools than ever admitting 25% or more of very high and extremely high risk students. This suggests that until there is an effective bar passage standard, the risk of continued exploitative admissions practices remains high.
In their last ditch effort to derail the passage of this new standard, the Deans have cited the results of the July 2016 California bar exam, noting that schools with strong admission standards and good reputations, like UC Hastings and Chapman, had first-time pass rates in the 50s, which would place them in jeopardy of not meeting the new standard. But what the Deans fail to mention is that graduates of a law school with much lower admission standards, Cal Western, had a first time pass rate of 61%. Cal Western’s entering class of 2013 had an LSAT profile of 154/151/148 at the 75th/50th and 25th percentile. Cal Western’s results prove that a school can admit a reasonable number of high risk students (but not very high or extremely high) and still achieve respectable results on even the toughest bar exam. Incidentally, Cal Western has a very diverse student body, with 36% of students in 2013 identifying as racial minorities. Dire predictions that the new bar passage standard will do grave harm to efforts to diversify the profession are unsupported.
The exploitation of college graduates who dream of becoming lawyers, but have no demonstrated aptitude for the study of law, needs to stop. Law school is not for everyone. Law schools should admit only students with reasonable capacity for the study of law, and give them an education which gives them a strong chance to pass the bar. If they can't do this, they don't deserve to be accredited by the ABA.