The Faculty Lounge

Suing The Law Schools, Part 83: Entering Law School Without A BA

We know that students and alums  lawyers are suing law schools for failure to provide employment information for graduates.  But here's a new one.  Morgan Crutchfield is suing Lincoln Memorial University's law school - yeah, that law school -  for negligence.  She was told that it would be no problem for her to finish her Penn State BA while she was a law student at LMU.  But it turns out that Tennessee requires individuals sitting for the bar to have completed their bachelor's degree before starting law school.   Her claim is that the school negligently allowed her to enroll in the program without a degree.  She seeks up to $750,000 in damages.  

The quirk in this case is that while Tennessee Supreme Court Rule 7 requires the bachelor's degree before starting law school, that requirement may waived at the discretion of the state's Board of Law Examiners.

I'm not sure Mr. Crutchfield has a winner on his hands.  Nonetheless, this raises an interesting question for many other law schools.  Since the ABA doesn't require law schools to condition attendance on a bachelor's degree, and since some highly respected schools even have a 6 year BA/JD program,  could every school conceivably be negligent if it fails to warn such applicants that they might not be able to sit for the Tennessee bar?  Or would only Tennessee schools be on the hook?  (Or would you look to see the number of grads heading to Volunteer State from any given state to make that determination?)  

Do other states have this bar requirement?  Do other states provide for discretionary waiver?

A Few Ways NOT To Solve America's Unequal Access To Justice

“The very rich,” F. Scott Fitzgerald famously observed, “are not like you and me.”  True enough, Dorothy Parker reportedly quipped: “They have more money.”  Parker's remark also backhandedly lends some perspective on a genuinely serious contemporary problem receiving more currency than usual these days:  America's unequal access to justice.

We find ourselves at a sadly ironic moment in the history of the American bar.  After many years of increasing demand for lawyers, structural changes in the pricing and staffing of legal services that have been both exposed and amplified by the Great Recession have created a downdraft in the demand for new lawyers.  As a result, something like one-third of recent law school graduates have found it impossible to find or keep a job requiring or preferring a law license.  Some appreciable additional quantity of recent graduates have been able to find only episodic "legal process" piecework such as document review, often yielding relatively meager rewards, no security or benefits, and virtually no hope of meaningful training or advancement.  Talk about quiet desperation.

At the same time, for many years legal aid programs have been turning away substantial numbers of applicants for their services, not for ineligibility or lack of expertise, but simply for lack of the resources necessary to meet the poverty population's needs.  The recent slashes in the budget of the Legal Services Corporation (a congressionally created and funded entity that distributes money to programs providing legal services to the indigent), and plummeting revenues from states' IOLTA funds (Interest on Legal Trust Accounts, the funds many states derive by requiring depository institutions to remit the interest on lawyers' trust accounts to the state to fund legal services for the needy) resulting from swan-diving interest rates, have only made things worse.

The irony emerges when we lay these two points side by side:  There are currently tens of thousands of unemployed or underemployed recently-licensed lawyers, and hundreds of thousands of low- and moderate-income consumers in aching need of legal assistance with housing, employment, education, healthcare and government benefits issues (among other things).  Why, it would be fair to ask, has this excess supply not linked up with this excess demand?

One plausible explanation is simply the inverse of Dorothy Parker's rejoinder:  The poor are poor because they have no money.  As a result, an economist might easily conjecture, their needs provide a meager draw for the many lawyers in today's economy with no (or insufficient) work. 

Up to this point, I imagine that my readers (assuming one or the other of them isn't otherwise occupied) will consider this discussion obvious.  But it raises some potentially interesting implications:

First, a hat-tip to David Segal, the New York Times' cheerful basher of the legal academy and the organized bar with a striking knack for getting things almost exactly half-right, who in one of his recent jeremiads suggests that law schools' costs of meeting ABA accreditation standards have so raised the price of a legal education that graduates simply can't afford to serve the legal needs of the poor and middle class.  (Full disclosure:  I spoke with Segal at some length before his recent and widely remarked-upon New York Times piece about how law schools don’t teach “lawyering.”  The story completely ignored several issues with Segal’s perspective I had brought to his attention during our conversation that I thought he had agreed were worthy of consideration.  For the record, I am disappointed.)  Segal offers the alternative of the multi-tier system in the UK, in which there reportedly are different levels of licensure to practice law, with the most modest requiring only limited education at inexpensive institutions roughly equivalent to community colleges, and authorizing the holder to perform a correspondingly limited array of less complicated tasks.  I confess ignorance of the UK's professional licensing scheme (other than the existence of a mandatory two-year postgraduate apprenticeship for at least some practice certifications, which I take quite seriously); and I also confess that this multi-tier idea presents some genuinely interesting possibilities worth examining.  But the notion that it would make any significant dent in our current access to justice problems seems doubtful at best. 

Why?  To reiterate, the poor are poor because they have no money.  The hundreds of thousands of American families currently facing foreclosure can't afford to pay their mortgages.  Obviously they can't afford to pay attorneys, even if they could get them at minimum wage.  To put it slightly differently, if there were any paying market to provide legal services to low- or moderate-income consumers (outside legal aid, whose shrinking resources come from sources other than clients) thousands of recent law graduates would be rushing in to serve it.  In fact, what is striking about the current excess supply of lawyers is that it has not apparently found any substantial untapped lower-price market even among the middle class.

The obstacle is not that these new graduates have large student loans to pay.  Though many of them do, bear in mind that many recent government-funded student loans require the borrowers to pay only a percentage of whatever income they earn, rather than a fixed monthly amount.  More importantly, most unemployed law graduates understand that the best way to clear a path to a more satisfying and remunerative law job is to get actual experience doing legal work, even at subsistence wages; and that the surest way to make yourself less competitive and eventually unemployable in the legal job market is to lie fallow and do nothing (or to put food on the table with work that makes no use of the expensive diploma hanging over that unsightly crack in the wall).

Please understand that I am in no way suggesting that our unemployed law graduates are lazy, or stupid, or elitist.  In fact, I believe exactly the opposite--I think a great many are doing everything they can think of to address a terribly difficult situation, bringing tremendous effort, initiative and creativity to bear day after day after day.  Which is exactly why it ignores reality to recycle old suggestions that all we need to do to moderate the cost of legal services and meet currently unmet needs is lower the cost of entering practice.  (Examples include Segal’s New York Times article referred to above, and the buffoon at Brookings who recently enjoyed his fifteen minutes of fame advocating—as if it were a new idea—the abolition of any license to practice law.)  Excess capacity already exists and has effectively left those problems untouched; why would you want to create even more, even if it spawned none of the serious externalities these suggestions drag into the picture?  There may be other reasons to consider adjusting the barriers to entering the legal profession, but the ones most commonly advanced these days are refuted by current events.

--Bernie

California Surprises: Bar Results For Out-Of-State Schools

As Paul Caron noted, the July California bar results are out.  Although Paul has highlighted the results for California schools, it seems worth sharing the results for ABA schools outside California.  There are a few eye-raisers here - including one school that had 20 takers and only a 5% first-time bar pass rate.  

California lists all schools with ten or more takers.  I've posted the list below in order of bar pass rate for first timers.  Click on the image to expand it or view the overall results here.

The wisdom of regulating lawyers (vox populi edition)

The New York Times recently published an Op-Ed piece from a fellow at the Brookings Institution extolling the various social miracles that would transpire if we eliminated legal education and bar licensing as a condition to the practice of law.  You can see it here (“Are Law Schools and Bar Exams Necessary?”).  Three Letters to the Editor commenting on the Op-Ed are reproduced here.  Each takes a distinct point of view that is as polemic as the original Op-Ed.  Together they comprise a very good and admirably succinct background to a debate on whether law licensure is necessary, what its costs and benefits are, and how well our existing system takes those costs and benefits into account and appropriately balances any tradeoffs.  Those among us who teach Professional Responsibility may find this a valuable resource to ground class discussion on the subject.

While in my own view there is a great deal more, and a great deal less, to each contributor's position than their statements suggest, I offer only one comment on these materials here.  Conspicuously missing from any of the position pieces (except obliquely in the first Letter to the Editor) is any assessment of the significance of what is in my view the single most salient factor influencing this debate--the fact that it is extremely difficult for nonexperts to determine with any accuracy the quality, efficiency or even need for most of the professional services lawyers provide.  Put slightly differently, the eventual result of and the buyer's satisfaction with professional services are exceptionally noisy quality signals.  It is little short of astonishing that the "economist" from Brookings who gave us the original Op-Ed should have assumed this issue away, and instead assumed that crowd-sourced lay assessments would adequately inform the market and police for quality and competence. 

Law is hardly unique in this regard, of course.   Medicine is another obvious example of professional services whose quality and need are very difficult for lay buyers to judge in most instances, both before and after the services are provided.  And this phenomenon is a matter of degree for any service involving skill and expertise--think of the extent to which most of us are forced to rely on the judgment of our auto mechanics, plumbers and electricians.

Which is not to suggest that our current requirements for law licensure, or our policing of licensees, are currently optimal in any particular respect.  But the world rarely makes any issue of importance as simple as we all might wish.

Bernie

ABA Standards Review Committee November Meeting

Today the ABA Standards Review Committee posted materials relating to its upcoming (November 11-12) meeting.  The materials include this Memorandum, from Jeffrey E. Lewis, Chair, Standards Review Committee & Dean Emeritus and Professor of Law, Saint Louis University:

The Standards Review Committee of the ABA Section on Legal Education and Admissions to the Bar is holding its first meeting of the academic year on November 11-12, 2011, at the Ritz Carlton Chicago. I am the new chair of the Committee; along with six additional new members, I will be joining seven continuing members of the Committee.

On Friday, November 11, the Committee will hold an open forum from 9:15 a.m. to 3 p.m. The Open Forum will provide the members of the Committee an opportunity to hear personally from those organizations and individuals who have an interest in the work of the Committee as it continues the comprehensive review of the Standards of Accreditation.

The majority of the time allotted for the forum will be assigned to invited organizations. Other interested individuals and entities are invited to speak during the last hour of the forum and will be allotted five minutes during this final hour on a first come basis.

The Committee will listen to interested constituents on Friday, as indicated. On Saturday the Committee will review and discuss the current work product. No action on any substantive matters will be taken at this November meeting.

Requests to speak should be sent to JR Clark, JR.Clark@americanbar.org, by October 31, 2011. (Emphasis added.)

The SRC also posted the drafts of the Standards (with Reporter's Notes at the end of each chapter).  As indicated in the Memorandum, there are no action items at this meeting. 

With regard to Interpretation 301-6, the Reporter's Notes on Chapter 3 indicate

Interpretation 301-6, dealing with bar passage rates, was the subject of a SRC subcommittee. The subcommittee submitted proposed recommendations for changes in current Interpretation 301-6 specifically to raise the bar passage rate from 75% to 80% and from no more than 15 points below the pass rate in the jurisdiction to no more than 10 points below. After discussion, there was no consensus on making the change from the current requirements as set out in Interpretation 301-6. The SRC agreed that Interpretation 301-6 should be converted into a Standard and should become Standard 303 with other Standards renumbered accordingly.

Chapter 3, p. 37 (emphasis added).   The existing draft of Interpretation 301-6 does not change 75%cumulative or -15% first-time benchmarks for Bar passage rates (Chapter 3, pp. 2-4), nor does it upgrade 301-6 from an Interpretation to a Standard.  Again, the existing draft is only up for discussion at the meeting.

According to the 2011-12 SRC Meeting Schedule and the Section's Calendar, upcoming meeting dates of the SRC and the Section Council are:

• SRC meeting, January 14-15, 2012
• ABA Midyear meeting, February 1-7, 2012.
• Council meeting, March 16-16, 2012
• SRC meeting, April 27-28, 2021
• Council meeting and June 8-9, 2012
• SRC meeting, July 13-14
• ABA Annual meeting, August 2-7, 2012.

 

The Demand for Law School

The number of persons applying to for Fall 2010 seats at ABA law schools fell by by ten percent or more.  According to the LSAC's "LSATs Administered," 26,812 persons took the LSAT in June 2011 , as compared to 32,973 persons in June 2010--a year-over-year drop of 18.7%. But how closely does the number of June takers, follow the total number of takers for that admission year (June, October, December and February)?  The correlation coefficient (R) for takers is 0.907, or a coefficient of determination (R-squared) of 0.823. The correlation coefficient (R) for percent changes is slightly lower, at 0.853 (R-squared = 0.727).

In looking at

• the LSAC Volume Summary, 
• the various LSAC Technical Reports for various years on LSAT Performance with Regional, Gender and Racial/Ethnic Breakdowns, and
• The ABA's statistics on Enrollment and Degrees Awarded,

I noticed some interesting patterns in the annual numbers for LSAT takers, (preliminary) ABA applicants, and first-year enrollment in ABA law schools:

Educational Requirements for Bar Admission

How long should you have to go to school to become a lawyer?

In most states, the current model of admission to practice law requires that a person have J.D.  Before a person can get a J.D., the person must have received a Bachelor's degree of some kind.  For most persons, that means seven years of full-time study: four years, of college and then three years of law school. Some universities and law schools offer so-called 3/3 programs, in which a person is admitted to law school after only three years of college, then takes the usual three years of law school, and gets both a Bachelor's degree and the JD.  So seven, occasionally six, years of post-high-school formal studies to become a lawyer in the U.S.

In most other countries, the law degree is the first college-level degree--an LL.B..  But persons with foreign LL.B.'s generally cannot sit for one of the U.S. Bar exams. In some states, a U.S. LL.M suffices, but often such persons must also get a J.D.

California only requires two years of college or its equivalent.  Cal. Business & Professions Code § 6060(c).  The ABA permits no such nonsense for schools that it accredits.  Standard 502(a).  Enter the California-accredited law schools, which may admit students with either

• a Bachelor's degrees;
• two years of college, or
• the equivalent of two years of college, as evidenced by a score of 50 or higher (out of 20 to 80) on designated course exams of the College Level Examination Program.
  

Guidelines for Accredited Law School Rules, Rule 5.1.  That takes it down to six years.

A couple of other things that I noticed.  Section 6060(e)(2) of the California Business & Professions Code allows persons to read the law.  Perhaps more interesting is that Section 6060(e)(1) allows applicants to have either

a juris doctor (J.D.) degree or a bachelor of laws (LL.B.) degree by a law school accredited by the examining committee or approved by the American Bar Association.  (emphasis added)

Until recently, the rules for admission to theCalifornia  Bar required applicants to have a J.D. (see Admissions Requirements).  Rule 4.26 was amended, effective as of  July 22, 2011. to allow applicants to have an LL.B from an accredited school:

Rule 4.26 Legal Education

General applicants for the California Bar Examination must

(A) [deleted text begins]be graduates of [deleted text ends][inserted text begins] have received a juris doctor (J.D.) or bachelor of laws (LL.B) degree from a [inserted text ends]  law school[deleted text begins]s[deleted text ends] approved by the American Bar Association or accredited by the Committee;

Rules of the State Bar of California, Admission to Practice Law, Rule 4.26, as amended (emphasis added).

It will be interesting to see what the California Bar has in mind.

Update No. 1  As I noted in the comments, the Bar was making extensive changes to its rules.  The LL.B change may only have been to make the rules conform to the statute.  Yes,  the JD is a "recent" development. When I went to law school I got a JD, but, at the time I was born,even ABA-accredited law schools issued LL.B degrees.

Update No. 2.  As a commenter pointed out, Cooley Law School does not require students to have a Bachelor's degree.  Standard 502(a) does allow ABA-accredited schools to admit students with at at least 3/4 of the college credit required for that degree.  According to Cooley's website, Cooley admits both

• 3/4 students, with no reference to any formal 3/3 program, and
• 2/4 students with at least 60 semester-hours (90 quarter-hours).

Apparently the Michigan Bar allows two-year students with a JD to take the Michigan Bar.  ABA Standard 502(b)  does allow ABA-accredited law schools to admit students who do not have a Bachelor's degree, or have done 3/4 of the work for one:

In an extraordinary case, a law school may admit to its J.D. degree program an applicant who does not possess the educational requirements of subsection (a) if the applicant’s experience, ability, and other characteristics clearly show an aptitude for the study of law. The admitting officer shall sign and place in the admittee’s file a statement of the considerations that led to the decision to admit the applicant.

Standard 502(b) (emphasis added).  Cooley's approach to two-year applicants:

If you are applying to Cooley Law School under the two-year rule and you meet the index requirement for Regular Admission, your file will be reviewed by the Faculty Admissions Committee. The Committee will determine whether you have the maturity level sufficient for the study of law and for beginning law practice. You will be required to write a statement (1) explaining why you want to start law school without a bachelor’s degree and (2) convincing the Committee to accept your application.

LSAT or No LSAT: Uneducated Guesses?

With the ABA set to remove the requirement that law schools use the LSAT in admissions, it's worth thinking about how that would work.  First, law schools would still be subject to Standard 501(b):

A law school shall not admit applicants who do not appear capable of satisfactorily
completing its educational program and being admitted to the bar.

ABA Consultant's Memorandum 1 (August 2009) said that was the Accreditation Committee's primary concern when  a schools requested a variance from Standard 503 to use an alternate admission criteria:

The basic issue for the Accreditation Committee to decide under Standard 503 is whether admissions criteria being employed by the special admissions program are comparable to the admissions criteria being applied under the standard admissions program.... The assessment methods used should be shown to be valid for the intended purpose (i.e., to assess “the applicant’s capability of satisfactorily completing the school’s educational program”), by demonstrating that the performance of students admitted under the special criteria is, in general, about as good or better than that for students admitted under the standard criteria.

An article by Scott Jaschik,  'Uneducated Guesses' (Inside Higher Ed, August 3, 2011), discusses an upcoming book by Howard Wainer, Uneducated Guesses: Using Evidence to Uncover Misguided Education Policies. Wainer did what the Accreditation Committee suggests:  he compared the relative first-year GPAs of students admitted with, and without, the SAT. Wainer found that the SAT-admitted students had "slightly better grades."  Wainer's bottom line  is

... that these and other data suggest that colleges that seek to enroll those who will perform best in their first year are acting against the evidence when they make the SAT optional. "Making the SAT optional seems to guarantee that it will be the lower-scoring students who perform more poorly, on average, in their first-year college courses, even though the admissions office has found other evidence on which to offer them a spot," he writes.

The article then quotes Robert Schaeffer (National Center for Fair and Open Testing), who points out that Wainer spent most of his career in the testing industry.  Schaeffer says that other studies have shown that going SAT-free "has no impact on retention or graduation rates" (emphasis added). Those who support going test-free argue that admissions should be more about access, that schools should focus less on grades and more on retention and graduation. 

But recent JD's have the Bar exam standing between them and practice.  One of the ways that the ABA Accreditation Committee grades law schools on the net result of admission policies, academic program, and academic support is institutional Bar-passage rates. And Bar-passage rates are particularly critical for law schools at the lower end of the market for law students.

Oddly, the early point of the "outcomes measurement" supporters was that the ABA should use alternative ways to grade law schools, rather than focusing on the Bar.  The way things are shaping up on outcome measures, the ABA is thinking in more in terms of  "and," rather than "or."

In any event, the article, and the book, are food for thought in deciding whether to LSAT or not to LSAT.

New Article on Mismatch

In Sander v. State Bar of California, I noted a recent court opinion relating to the quest by Richard Sanders (UCLA) and others to force the California Bar Examiners to disclose data for the purpose of further testing of Sander's Mismatch Hypothesis. 

Gregory Camilli (Colorad0, Education) and Kevin G. Welner (Colorad0, Education) have an interesting new article, Is There a Mismatch Effect in Law School, Why Might It Arise, and What Would It Mean?, 37 J.C. & U.L. 491 (2011).  The article is a survey of the literature.  What's interesting is that Camilli and Welner  go beyond the law-school mismatch studies, and also look at studies of "match effects" in other "heterogeneous learning environments," from kindergarten to college undergraduates.

Apart from doubts about the existence, significance and direction of match effects, Camilli and Welner see match effects as a separate issue from the value of affirmative action or diversity:

* * * Even if match effects were estimated with a much higher degree of precision, there is only a tenuous connection between match effects and the logic in Grutter v. Bollinger concerning the broad educational benefits of diversity. Empirical match effects have no bearing on the intangible benefits of attending and graduating from an elite law school, nor do they have bearing on the “merit” argument against affirmative action. In the end, the two issues--match and affirmative action-- may inform one another, but they are truly separate conversations. Evidence of mismatch ultimately has nothing to do with race or ethnicity, and explanatory support for the hypothesis should be examined with regard to students substantially less credentialed, whatever the basis of their admission. Focusing on race, and thereby on affirmative action, sorts out one group and thus creates the perception of a political motivation to change admission policies. This may further encourage the incorrect assumption that without affirmative action, there would be little diversity in pre-law credentials at elite schools. Most unfortunately, the affirmative action focus of the extant mismatch hypothesis discussion implies an admissions-based solution to any performance concern, rather than a solution grounded in academic and social supports for lower-achieving students.

Id. at 526-27 (emphasis added).

A Tale of Two Law Schools: Academic Support and the Bar

As I discussed in AToTLS: Introduction, the ABA reportedly based its denial of full accreditation to University of La Verne, at least in part, on  Standard 303 (continuing enrollment of students) and Interpretation 303-3.  AToTLS: Academic Attrition compared academic attrition rates at Charlotte  Law School and La Verne.  

This installment looks at the second aspect of academic support:  "a satisfactory opportunity to ... become a member of the legal profession."  As written, Interpretation 303-3 has a narrower than does Standard 301(a). As I discussed in AToTLS:  301 and Transparency, Standard 301(a) looks at both "admission to the bar, and effective and responsible participation in the legal profession" (emphasis added). Interpretation 303-3 (proposed Standard 306(d), (pg. 5)) looks only at becoming a member of the legal profession.

One would think that neither this year's Accreditation Committee, nor the Council, could have found La Verne wanting based on Bar passage rate.  As I discussed in More on La Verne, La Verne's cumulative Bar passage rates exceeded even the proposed 80% benchmark in three of the last five annual cohorts.  I have not seen any of the correspondence between the ABA and La Verne, but I have been told that the Council was dissatisfied with La Verne's first-time bar passage rates and difference scores.  See also, Karen Sloan, Irvine wins provisional accreditation, but La Verne loses ABA's blessing.

If first-time Bar passage played any role in the decisions on La Verne, then something is wrong at the Secti0n of Legal Education and Admission to the Bar. Either the Council is not following it's own rules, or it is applying an informal, second, bar passage benchmark.

I can understand why the Council might think the proper focus is first-time Bar passage.  Failing the Bar on the first attempt is costly, both psychologically and financially--all those student loans start coming due.  Not every first-failer is My Cousin Vinny, and persists, keeps retaking the Bar in the face of multiple failures. But, if memory serves, that issue came up when 301-6 was first considered.  Even the proposed changes to 301-6 would keep cumulative (ultimate) Bar passage rates as an alternative Bar passage benchmark.

If something else is going on, the Council needs to put it in the Standards.  Even if the action on La Verne was "to instruct the others," secret signals instruct no one.

301-6 An "Action Item" at Upcoming Meeting of Standards Review Committee

According the agenda the proposed revision of Interpretation 301-6 (Bar passage benchmarks) will considered for "approval and Send to Council" at this weekend's ( July 9-10, 2011) meeting of the ABA Standards Review Committee (SRC). The SRC's website does not show a new draft, so the draft included in the Report of Bar Passage Subcommittee  for the April meeting.

In addition to my own earlier comments, and those of the Society of American Law Teachers (SALT), both the ABA Councial on Racial and Ethnic Diversity in the Education Pipeline, and the Clinical Legal Education Association (CLEA), have submitted comments opposing the proposed changes to 301-6.

I expect the SRC to approve the changes.  What will happen at the Council is anybody's guess.  In 2007, opposition to the same benchmarks (10% below or 80% cumulative ) by the Council of Racial and Ethnic Diversity in the Educational Pipeline, and others, resulted in the Council adopting, instead, the current 15% below or 75% cumulative in January 2008. That said, this is the same Council that just denied full accreditation to University of La Verne.

According to the minutes of the April meeting,

The committee reviewed the subcommittee proposal for changes to 301-6. The subcommittee felt that the current standard, which permits a failing rate of up to 25% for bar passage, is unacceptable. Since 2007, over 100 schools have been reviewed by the Accreditation Committee as part of regular sabbatical and other site visit processes. Of those schools reviewed, all met the current bar passage standard using at least one of the two allowable methods for determining compliance – first time bar passage results or ultimate bar passage results. Under the proposed change, every law school but one would meet compliance of proposed rules of no more than 10 points below or at least 80 percent ultimate bar passage.m (Emphasis added.)

Perhaps the reason the current benchmarks are unacceptable is that the Accreditation Committee has been unable to use Bar passage rates to pressure law schools.  While I'm relieved to hear that only one of the first 100 up for accreditation review, I worry that even the proposed 80% cumulative rate will not satisfy the ABA.  Do I hear 85% rattling in the grass?

It's only three years later.  Only half of the ABA-accredited law schools have been reviewed under the current benchmark.  Any students admitted with those benchmarks in mind are just beginning to take the Bar.  Perhaps the Council should wait and see what happens.

A Tale of Two Law Schools: 301 and Transparency

If nothing else, the denial of University of La Verne's application for full ABA approval tells us one thing:  complying with Interpretation 301-6 does not mean that you comply with Standard 301.  We should have been paying closer attention to Standard 301(a):

A law school shall maintain an educational program that prepares its students for admission to the bar, and effective and responsible participation in the legal profession. (Emphasis added.)

Just in case we're not clear on that, the draft of Standard 301 that will be considered by the Standards Review Committee this coming weekend (July 9-10, 2011) numbers it:   "... (1) admission to the bar, and (2) effective ...."  It then hammers the point home in new Interpretation 301-1, which would replace all existing Interpretations of Standard 301, except for (a renumbered) 301-6.  Proposed Interpretation 301-1 reads:

The Standards in this chapter are designed to ensure that the law school’s educational program is rigorous and prepares its students both to be admitted to the bar and then, once admitted, to participate effectively, ethically, and responsibly in the legal profession. Because bar passage rates principally reflect how well a law school prepares its students for admission to the bar, an acceptable bar passage rate is a necessary, but not sufficient, condition to comply with these standards. To demonstrate how well it prepares its students for admission to the bar but also how well it prepares them for effective, ethical and responsible participation in the legal profession, the law school will need to use a variety of additional means to demonstrate compliance with these standards. (Emphasis added.)

In The ABA, the DoE and 301-6, I explained that the ABA itself has to be accredited as an accreditor, and that the ABA had been put on the equivalent of report-back" status because some of its Standards, including those with respect to job placement were not transparent:

The agency reports that it evaluates placement rates as part of its assessment of student achievement, but does not provide information about its expectations for placement or the criteria by which it evaluates an institution’s or program’s performance in this area.

* * *

Although the agency collects graduate placement data, there is no evidence that the agency has a standard indicating what compliance means, if it uses placement as a factor to determine student achievement. * * *

* * * The agency needs to demonstrate its expectation regarding job placement data it collects. (pg. 8 of DoE Staff report on ABA)(p. 166 overall). (Emphasis added.)

And so here.  Apart from vague descriptors--rigorous, effective, ethical, responsible--by what other,  "additional," means, and using which measures, does (or will) the ABA determine whether a law school properly prepares its students for participation in the profession? 

For the future, of course, Chapter 3 of the Standards will be chock-full of outcome measures--or at least references to outcome measures.  But how about now?  How about last month?

"Enquiring minds want to know."  I'm sure La Verne does.

A Tale of Two Law Schools: Cut Scores and Bar Passage Rates

I've been comparing Charlotte Law School and University of La Verne College of Law.  Although both law schools are similar in many ways, recently, the Council of the section on Legal Education and Admission to the Bar fully accredited Charlotte, but denied full accreditation to La Verne, and allowed its provisional accreditation to lapse. 

As I discussed earlier (A Tale of Two Law Schools: Introduction), the reported reasons for La Verne's denial were:

• Standard 301 (quality of program, citing Interpretation 301-3;
•  Standard 303 (continuing enrollment of unqualified students), citing Interpretation 303-3 (academic support); and
• the lack of progress on La Verne's Bar passage rates.

The most glaring difference between the two law schools is first-time Bar passage rates and differences from the average first-time Bar passage rates for takers from ABA-approved law schools (difference scores).

As with the value of real property, the key to relative Bar passage rates and difference scores is location, location, location.  Charlotte is located in North Carolina, while La Verne is located in California.  As is true with most lower-tier law schools, most of the graduates of each school take the local Bar exam.  The Bar exam cut score in North Carolina is 138.3/200, which is high (84th percentile), while the cut score in California is very high--144/200 (98th percentile)--second only to Delaware's 145.

As I discussed in Interpretation 301-6: Low LSATs and High “Cut Scores,” Bar passage rates are affected not only by LSAT scores, but also by cut scores; bar passage rates fall as cut score  goes up.  For example, compare the 2009 overall first-time Bar passage rates for takers from ABA-approved law schools for selected states:

2009 First-Time Bar-Passage Rates Takers from ABA-Approved Law Schools
State	Cut Score	Rate
California	144.0	73%
North Carolina	138.4	78%
Overall	---	83%
Texas	135.0	85%
New York	133.0	87%
Minnesota	130.0	90%

 The idea of difference scores is to adjust for differences in state cut scores.  As I discuss in Benchmarking the Bar:  No Unity in Difference Scores, the effect on Bar passage rates of a one-unit fall in a law school's middle LSAT grows as average passing rates fall towards 50%.  As a result, the difference scores of lower-tier law schools in high cut score states, such as California, will be lower (farther below the state average) than law schools in lower cut-score states.

Moreover, in high cut score states, it will take longer for cumulative (ultimate) Bar passage rates of an annual cohort to rise 9and level off).  According to Carol Chomsky (Society of American Law Teachers), Report on the April 2011 Standards Review Committee Meeting (Part II), that Committee recognized this. According to Chomsky, that Committee also suggested that

it would be a good idea to push California to lower its cut score and so increase its bar pass rate, especially given the high minority population there.

As the saying goes, "Good luck with that."

In the meantime, La Verne, and other lower-tier law schools in California, must either go back to having only a California accreditation, or

• take fewer chances in admissions--and fewer minority students--or
• work harder--including academic support--to prepare their students for the ordeal ahead.

The usual approach of ABA-accredited schools has been to do both.

But how does the ABA decide whether a school is giving enough academic support?  I've already discussed Academic Attrition, but there's more to academic support than that   But that's the next installment of this tale.

A Tale of Two Law Schools: Introduction

The same weekend that the Council of the Section on Legal Education and Admission to the Bar came down hard on the University of La Verne College of Law (see posts here and here), the Council gave full accreditation to Charlotte School of Law.  Publicly available data on the two schools offers a glimpse of the challenges faced by schools in lower quintile of entering LSAT scores.  More importantly, it also illustrates why California, and California-based law schools, pose such a challenge for national standards for law-school accreditation.

Let's begin with the basics.  The undergraduate GPAs of the Fall 2010 entering classes  at Charlotte and La Verne are almost identical.  Based on the LSAT profile of those classes, La Verne clearly enrolls stronger students.  La Verne's LSAT 50th percentile is the same as Charlottes 75th percentile.  More importantly, La Verne's LSAT 25th percentile has climbed out of the 140's. At 150, its LSAT 25th percentile for Fall 2010 equals its LSAT 75th percentile for Fall 2006.  La Verne has clearly benefited from provisional accreditation, which bodes well for future Bar passage rates. 

Fall 2010 Entering Classes
	Charlotte	La Verne
GPA 75th	3.34	3.33
GPA 50th	3.04	3.05
GPA 25th	2.73	2.74
LSAT 75th	152	155
LSAT 50th	149	152
LSAT 25th	148	150
2009 Average Bar Passage
First-Time	69.1%	34.0%
Difference	-7.8%	-39.6%
Cumulative	***	74.8%
2009 Predominant Bar Passage
State	NC	CA
First-Time	67.3%	32.3%
Difference	-7.8%	-40.9%

Speaking of Bar passage rates, Charlotte seems much stronger than La Verne.  Charlotte's first-time Bar passage rates are just below 70%, and its first-time difference score easily beats even the proposed 10% below standard.  On the other hand, La Verne's Bar passage numbers are startlingly low.  With a first-time difference score of 40% below, even the current 15% below benchmark seems hopelessly out of reach. 

Many of you must be thinking "Something must be wrong with La Verne."   Well, that's what the Section Council and this year's Accreditation Committee thought.  Reportedly, last year, the Accreditation Committee recommended granting La Verne full approval, but the Section Council was concerned about its 2009 first-time Bar passage rate and difference score, and told the Accreditation Committee to take another look.

This year, La Verne was denied full approval.  Under Standard 102(b), provisionally-accredited law schools have five years to get full approval.  If they do not, they automatically lose provisional accreditation, unless the Council, "in an extraordinary case and for good cause shown," extends provisional accreditation beyond that.  In La Verne's case, the Council chose not to extend its provisional accreditation.  Reportedly, the Council thought that La Verne had not made "adequate progress" on Bar passage rates (which would have been grounds for an early withdrawal of provisional accreditation under Standard 102(b)).

Reportedly, the Accreditation Committee found that La Verne had not complied with either Standard 301 ( Interpretation 301-3) or Standard 303 (Interpretation 303-3).   Standard 301(a) requires law schools to "maintain an educational program that prepares ... students for admission to the bar, and effective and responsible participation in the legal profession."  Interpretation 301-3 provides that

[a]mong the factors to be considered in assessing the extent to which a law school complies with this Standard are the rigor of its academic program, including its assessment of student performance, and the bar passage rates of its graduates.

Standard 303(a) requires a law school to "have and adhere to sound academic standards," while 303(c) prohibits a law school from

... continu[ing] the enrollment of a student whose inability to do satisfactory work is sufficiently manifest so that the student’s continuation in school would inculcate false hopes, constitute economic exploitation, or detrimentally affect the education of other students.

Interpretation 303-3 requires

[a] law school shall provide the academic support necessary to assure each student a satisfactory opportunity to complete the program, graduate, and become a member of the legal profession. This obligation may require a school to create and maintain a formal academic support program.

Apparently, compliance with Standard 501 (Interpretation 501-3) regarding student credentials was not expressly mentioned.  But, 501/501-3 often go hand-in-hand with the quality of a law school's academic program (301/301-3) in general, and specifically with the quality of its academic support program (303/303-3). 

Standard 501(b) prohibits law schools from admitting students "who do not appear capable of satisfactorily completing its educational program and being admitted to the bar."  Interpretation 501-3 indicates that

[a]mong the factors to consider in assessing compliance with Standard 501(b) are the academic and admission test credentials of the law school’s entering students, the academic attrition rate of the law school’s students, the bar passage rate of its graduates, and the effectiveness of the law school’s academic support program. (Emphasis added.)

Thus, the level of required academic support depends on entering student credentials.  If a law school's academic attrition rates are too high, or its bar passage rates are too low, then its academic support will be found to be ineffective, given the academic credentials of its students.

More on La Verne

As I discussed in ABA Pulls La Verne's Accreditation, La Verne met the standards of 301-6 based on its cumulative Bar passage rates. I now have La Verne's cumulative Bar passage rates through the February 2011 Bar exams. The cumulative passage rates for the last five annual cohorts, and the corresponding first-time rates, are:

University of La Verne Bar Passage Rates
Cohort	First-Time	Cumulative
2006	55.6%	90.7%
2007	55.4%	91.4%
2008	82.6%	83.8%
2009	34.0%	74.2%
2010	53.0%	69.9%

La Verne meets the 301-6 minimum for cumulative Bar passage rates for three out of five cohorts (2006, 2007 and 2008). The 2009 cohort is one candidate short of meeting the current 75% minimum. The 2010 cohort jumped to almost 70% after one more exam. Presumably, this information was available to the Section Council when it made its decision last weekend.

It's clear La Verne had an unusually high first-time passage rate for the 2008 cohort, and an unusually low rate for the 2009 cohort. For the other three cohorts, 2006, 2007 and 2010, first-time Bar passage rates are essentially flat (the standard error for the 2010 rate was 5.4%).

Yes there has been no improvement in first-time rates. But, for the recent cohorts, there is also no reason to believe that, after a few more administrations of the Bar exam, cumulative passage rates won't climb well into the mid 80s, if not higher.

So, what's wrong with La Verne, other than its unfortunate location in California, the state with the second-highest cut score?

The answer to that question may lie in the Bar Passage Sub-committee's November 2010 and December 2010 reports. The concern, that law schools were viewing 301-6 as showing compliance with Standards 301 (program quality), 303 (academic standards and achievements) and 501 (admission of unqualified applicants). In the view of the Subcommittee, Bar passage is only one component of those Standards. But more on that later.

ABA Pulls La Verne's Accreditation

According to a media release by University of La Verne College of Law, University of La Verne College of Law Dealt Setback, on Monday, the law school was notified by telephone that the Council of the ABA's Section of Legal Education and Admission to the Bar was both denying the law school's application for full accreditation, and withdrawing its provisional accreditation, effective as of June 30.

While detailed findings are not yet available, the ABA Council’s overall opinion was that the law school’s first-time bar pass rate, which jumped from 34 percent in 2009 to 53 percent in 2010, had not sufficiently improved.  (Emphasis added.)

But Interpretation 301-6 allows law scho0ls to comply with the Bar-passage component of Standard 301 either based on its relative first-time Bar passage rate or  the overall (cumulative) Bar passage rates. As noted by Karen Sloan, in her article, Irvine wins provisional accreditation, but La Verne loses ABA's blessing (National Law Journal), the cumulative Bar passage rate for the 2009 cohort was already at 73%, or almost the 75% currently required by 301-6.

According to Sloan,

La Verne's bar passage rate was a sticking point for the council last year. The accreditation committee recommended in 2010 that La Verne receive full accreditation, but the council — which has the final say — extended the school's provisional accreditation for one year so it could gather more information about bar passage rates, admission decisions and related academic support.

As I discussed in ABA Standards and Bar Passage Rates, Bar passage rates implicate both Standard 301 (quality of academic program) and Standard 501 (quality of admitted students).  I'll have more to say about academic support as a part of a law school's academic program, but the Council's apparent primary reliance on first-time Bar passage rates  implies that the ABA may not be committed to cumulative Bar passage rates as an alternative to first-time rates.  As I suggested in Estimating 301-6 Risk:  First Cut, several law schools, including a majority of the Historically Black Law Schools can meet 301-6 only based on cumulative rates.

Sander v. State Bar of California

Richard H. Sander (UCLA) started a firestorm of controversy with his article, A Systemic Analysis of Affirmative Action in Law Schools, 57 STAN. L. REV. 367 (2004). Using data from the LSAC National Longitudinal Bar Passage Study, Sander argued that minorities who attended more elite law schools performed did not do as well as minorities who were admitted to an elite school, but chose to attend a non-elite school at which their LSAT scores and undergraduate GPAs more closely matched those of other students--the so-called "mismatch hypothesis".

To test the mismatch hypothesis, Sander and others proposed to study candidates for the California Bar exam. Apparently, California collects detailed information on candidates for its Bar exam. One of Sander's proposed co-investigator was Dr. Stephen P. Klein, a psychometrician previously consulted by the California Bar examiners, as well as those of most of the other states. The study would be conducted using privacy safeguards, such as those employed in the LSAC Bar Passage Study, as well as in analyses of the Texas and the New York Bar exams. See, Proposed California Bar Study.

When the State Bar of California refused to release the data, Sander sued to force the release. The trial court held that the data was not subject to public inspection, because the data were "adjudicatory court records". In Sander v. State Bar of California, A128647 (Cal. Ct. App. June 13, 2011), a panel of the Court of Appeals reversed. The Court of Appeals found that the data were "public documents," rather than "adjudicatory court records," and remanded to the trial court

... to determine whether the Bar must produce the requested information after balancing the applicants‟ interest in confidentiality and the burden this request imposes on the Bar against the strong public policy favoring disclosure. The trial court is best suited to craft any qualifications to an order for production that can accommodate these concerns if possible.

Slip Op., at 1-2 (emphasis added). No doubt, the case will soon be on its way to Sacramento San Francisco and the California Supreme Court.

My problem with the proposed California Bar study is that, like the Texas and New York studies, on the primary investigator will have access to the underlying dataset. After the LSAC Bar Passage Study, a bowdlerized version of its dataset, stripped of names, law school identities to reduced to 6 clusters (see Interpretation 301-6: Low LSATs and High "Cut Scores"), and law school locations reduced to geographical regions, was made publicly available (see Note after the Executive Summary of the Bar Passage Study).

Hat tip: Chronicle of Higher Education, California Court Revives Affirmative-Action Scholars' Quest for Data on Law-School Grads (subscribers only).

Update: As Vladimir points out in a comment, I don't know how things work in California. It never occurred to me that the California Supreme Court did not sit in Sacramento, but in San Francisco.

ABA, the DoE and 301-6

The ABA Section of Legal Education must itself be "accredited"--recognized as a law-school accrediting agency by the Department of Education.  The DoE has a standard on accreditation standards.  The DoE standard relevant to Standard 301 and Interpretation 301-6 reads as follows:

§602.16 Accreditation and preaccreditation standards

(a) The agency must demonstrate that it has standards for accreditation, and preaccreditation, if offered, that are sufficiently rigorous to ensure that the agency is a reliable authority regarding the quality of the education or training provided by the institutions or programs it accredits. The agency meets this requirement if -

(1) The agency's accreditation standards effectively address the quality of the institution or program in the following areas:

(i) Success with respect to student achievement in relation to the institution's mission, which may include different standards for different institutions or programs, as established by the institution, including, as appropriate, consideration of course completion, State licensing examination, and job placement rates. (emphasis added)

As reported by the Chronicle of Higher Education, American Bar Association Takes Heat From Advisory Panel on Accreditation (subscription), on Thursday, June 9, 2001, the DoE advisory panel, the National Advisory Committee on Institutional Quality and Integrity adopted a report by the DoE staff, and recommended that the DoE renew its recognition of the ABA, subject to a one-year report-back (pp. 159-183).

The report found the ABA out of compliance on 602.16(a)(1)(i), but not on account of the Bar-passage standards of 301-6.  What was the problem?  Lack of transparency as to the ABA's standards for job placement:

The agency does not meet the requirements of this section of the criteria. The agency reports that it evaluates placement rates as part of its assessment of student achievement, but does not provide information about its expectations for placement or the criteria by which it evaluates an institution’s or program’s performance in this area.

Analyst Remarks to Response:

Although the agency collects graduate placement data, there is no evidence that the agency has a standard indicating what compliance means, if it uses placement as a factor to determine student achievement. The agency reports that it is developing a new standard to address its expectations regarding job placement rates.

Staff Determination: The agency does not meet the requirements of this section of the criteria. The agency needs to demonstrate its expectation regarding job placement data it collects. (pg. 8 of Staff report on ABA)(p. 166 overall).

So the DoE does not appear to be one of those unnamed "constituencies" that thinks the current version of 301-6 is too lenient.  Moreover, it seems that the DoE might allow even more flexibility when it comes to bar passage.  Consider that 602(a)(1)(i)

• allows an institution's standards for student achievement to take into account its mission,
• recognizes that those standards may vary from institution to institution,
• suggests that each institution may establish own standards.

Contrast this with 301-6, which establishes uniform national standards, and only takes mission into account in deciding whether to grant a school additional time to bring itself into compliance with those standards.  301-6.C(v) & (viii).

For most schools, neither the minimum Bar passage standards, nor how they impact school mission, is of particular concern, but for Historically Black Law Schools, and other "access" it is of vital importance.   How does the ABA Standards Review Committee propose to address the impact of national Bar-passage standards on law-school mission?  It proposes to make those standards harder to meet. 

If Joseph Heller were still alive, I'd tell him to call his office; like Major Major in Catch-22, when it comes to 301-6, the Standards Review Committee appears to be "in" only when its "out".

Estimating 301-6 Risk: First Cut

Interpretation 301-6 imposes minimum Bar passage standards. Law schools must meet either the first-time or cumulative Bar passage standards (ABA Standards and Bar Passage Rates). The current first-time standard is a combined passage rate, across jurisdictions, that is no more than 15% below the combined Bar passage rate for all graduates of ABA-approved law schools. Schools can meet the standard based on its first-time Bar passage rates for the five most recent calendar years, either overall, or for at least three of those five years, individually. The Bar Passage Subcommittee of the ABA Standards Review Committee proposes to raise the first-time minimum to 10% below.

We know that Bar passage rates fall as LSAT scores fall, and as state Bar exam cut scores rise. See The LSAT-free Illusion and Interpretation 301-6: Low and High “Cut Scores”. We also know that minorities tend to have lower LSAT scores, and that law-school minority LSAT scores fall as overall law-school LSAT falls. So we can predict that the law schools most at risk under Interpretation 301-6 are law schools with lower LSAT scores, especially

• law schools with high minority enrollment ("Down Market" Diversity and Bar Passage), especially Historically Black Law Schools ("HBLS") (Historically Black Law Schools and the ABA), and
• law schools located in high cut-score states, such as California.

A methodological note: because the ABA Official Guide to ABA-Approved Law Schools has published "average" first-time Bar passage rates for only two years--2007 (2010 edition) and 2008 (2011 edition)--the effect of the proposed change cannot be determined based on average Bar passage rates. But the ABA Official Guides have published data on first-time Bar passage rates in each school's "predominant" Bar exam jurisdiction--the one where the largest numbers of its graduates took the Bar. For about half of all law schools, the published average rates are the same as the predominant rates, while about a quarter each are either higher or lower than the predominant rates. One advantage of using predominant Bar passage rates is that some states make Bar passage rates for all in-state schools, as well as for all graduates of ABA-approved law schools, available on the Bar's website. In such states, law-school relative in-state Bar passage rates can be determined for the 2009 and 2010 calendar years.

The following table shows the number of years (out of five) in which each school met the relevant standard (15% or 10% below). For schools in California, Florida and Georgia, the publicly available data for Bar exams in 2009 and in 2010 supplements the data from the ABA Official Guides for 2006 through 2008. For other schools, the table uses only data from the ABA Official Guide (2007 through 2011 editions) (generally, the 2004 through 2008 Bar exams).

Law Schools at Risk Number of Years School Met Standard for First-Time Bar-Passage
School	15% Below	10% Below	HBLS	State
Florida A&M	1	1	Yes	FL
Southern*	2	0	Yes	LA
Texas Southern	1	0	Yes	TX
La Verne	1	1		CA
District of Columbia	2	1	Yes	MD
Western State	2	2		CA
Whittier	2	2		CA
Atlanta's John Marshall	3	2		GA
Howard	3	2	Yes	MD
Thomas Jefferson	3	2		CA
Western New England	4	2		MA
*The ABA Official Guide (2011) reports no Bar passage rates for Southern. The table entries assume that the rates for 2008 would have been more than 15% below the ABA average.

Based on relative predominant Bar passage rates, if the minimum standard for first-time Bar passage rates were raised from 15% below to 10% below, the number of schools that would not meet that standard would rise form seven to eleven. Almost half of the affected schools--five out of eleven--are Historically Black Law Schools.

The six remaining law schools all have recent LSAT 75th percentiles in the lowest quintile of mainland law schools other than the HBLSs. Four out of six are located in California, which uses the second-highest cut score (145 on a 200-point scale). Four of the have relatively high proportions of minorities in their Fall 2009 entering classes:

Proportion of Minorities Fall 2009 Entering Class
School	Minorities
Atlanta's John Marshall	31.3%
La Verne	29.4%
Western New England	08.8%
Western State	34.3%
Whittier	23.2%
Thomas Jefferson	29.1%

As noted by bold entries in the "10% Below" column, for three of the seven law schools already at risk under the 15% below standard, the school met the 10% below standard for fewer years. For example, Texas Southern had slowly increased its "difference score"--the difference between its rate and the "ABA" rate--every year, until it had raised its difference score to about -13.8% for 2010.

Again, the data is based only on difference scores on each school's predominant Bar exam, not on its average difference score across jurisdictions, so these are at best estimates of 301-6 risk. 

For each these law schools, not meeting the first-time standard does not mean that the school does not satisfy Interpretation 301-6 based on cumulative Bar passage rates of at least 75% or 80% (proposed). But the ABA has not made any information on cumulative rates publicly available.

Historically Black Law Schools and the ABA

In Down-Market Diversity and Bar Passage, I discussed how minority students, particularly Black/African-American, generally have lower LSAT scores than do White/Caucasian students. I also discussed how law schools near the bottom of the market of law students tend to enroll minorities with LSAT scores than more elite law schools. This is particularly true for Historically Black Law Schools. Based on the average LSAT 25th percentiles for the Fall 2006 through Fall 2009 entering classes of mainland law schools, the bottom four schools were Florida A&M (142.50), Southern (142.75), North Carolina Central (143.50) and Texas Southern (145.00), while District of Columbia (148.75) and Howard (149.25) were grouped around the 15th percentile.

If the ABA is serious about increasing the diversity of the legal profession, especially in increasing the number Black/African American lawyers, it needs Historically Black Law Schools ("HBLS"). For Fall 2005 through Fall 2009 combined, even though students at the six Hal's represented only 2.0% of entering classes, those students represented 16.3% of Black/African-American entering students. Within the jurisdictions in which they are located, students at HBLSs represented a much greater proportion of Black/African-American entering students—from 25.9% to 63.6%.

As I discussed in The LSAT-free Illusion, students with lower LSAT scores are at greater risk of failing the Bar. Thus, you would expect the Historically Black Law Schools to have low Bar passage rates, depending on the states in which their graduates take the Bar (Interpretation 301-6: Low LSATs and High Cut Scores”). You would also expect HBLSs to be at much greater risk from the proposed increases in minimum Bar passage rates.

As I discussed in ABA Standards and Bar Passage Rates, the Subcommittee on Bar Passage of the ABA Standards Review Committeeproposes to raise the minimum first-time and cumulative Bar passage rates for law schools. The minimum acceptable first-time Bar passage rate would rise from 15% below the state Bar passage rate for graduates from ABA-approved law schools to 10% below. The minimum acceptable cumulative Bar passage rate would rise from 75% to 80%. The justification for the proposed increases in the Interpretation 301-6 is that the current benchmarks are “inadequate” and “not rigorous enough” (Donald J. Polden, The Standards Review Committee's Comprehensive Review of Accreditation Policy Moves Forward, SYLLABUS, Vol. 42, Issue 4, at 5 (Winter 2011).

As I discuss in my April 2011 comments to the ABA, Endangered: Historically Black Law Schools (revised version, dated May 24, 2010), a 10% below first-time Bar passage rate was the measure used by the ABA before the adoption of Interpretation 301–6. Efforts by the Historically Black Law Schools (“HBLS”) to meet the “10% below” minimum by increasing the LSATs of entering students are associated with decreases in the enrollment of Black/African-American students at HBLSs.

The best example is The University of the District of Columbia--David A. Clarke School of Law ("UDC"), the successor to District of Columbia Law School, which was provisionally accredited by the ABA in 1991. After the law school merged with the University of the District of Columbia, it reapplied for ABA provisional accreditation in 1998. In 1999, UDC received an ABA Action Letter asking it “to examine the relationships of LSAT scores and UGPAs to performance in the law school’s academic program and to the first time bar performance.” Derek Alphran, Tanya Washington & Vincent Eagan, PhD., Yes We Can Pass the Bar. University of the District of Columbia, David A Clarke School of Law Bar Passage Initiatives and Bar Pass Rates—From the Titanic to the Queen Mary, 14 UDC/DCSL L. REV. 9 at 16 n.42 (2011). After the resulting study, UDC changed in its admissions policies” in 2000, id. at 16, and again in 2002, id. at 13 n.24. Its rationale was “the steady increase in statistical profiles of th/e entering class would lead to higher bar passage rates.” Id.at 14 & nn.30-31.

As shown in the following chart, from 1998 through 2005, the LSAT 25th percentile of UDC’s entering classes rose from a low of 138 to 149. At the same time, the proportion of entering students that were Black/African-American fell from almost 70% to a low of about 25% (it has since recovered to about 30%).

 

Click on chart to enlarge 

More strikingly, as shown in the following table, Black/African-American students are no longer even a plurality of entering students at UDC:

Average Ethnic Distribution by School Fall 2007 through 2009 Entering Classes (Combined)
School	Asian/ Pacific Islander	Black/ African- American	All Hispanic	White Caucasian
Univ. of D.C.	5.9%	30.2%	11.7%	44.8%
Florida A&M	4.6%	41.2%	15.4%	36.1%
Howard	3.4%	78.4%	3.4%	5.6%
N. C. Central	2.5%	50.6%	2.6%	39.7%
Southern	0.4%	62.5%	1.2%	35.5%
Texas Southern	7.2%	49.0%	22.8%	18.2%

While the changes in the ethnic composition of entering classes are most dramatic at UDC, the ethnic composition of recent entering classes at the other Historically Black Law Schools are also notable. Over the three most recent academic years for which information has been published in the ABA-LSAC Official Guide to ABA-Approved Law Schools, at Florida A&M, North Carolina Central, and Texas Southern, Black/African-American students constituted at least a plurality of entering students, with the last two hovering near 50% of the class. Only Howard and Southern remain strongly Black/African American institutions. At four of the schools, White/Caucasian students had a substantial representation—at least 35%. At Texas Southern, the second-largest component of entering classes was Hispanic students. Only Howard had no strong representation of students from other racial or ethnic groups.

First-time Bar passage rates for at least half of the HBLSs have generally fallen below the 15%-below minimum, much less the proposed 10%-below minimum.  If those HBLSs are going to satisfy 301-6, it will have to be on the basis of cumulative Bar passage rates.  Again, the ABA does not publish information regarding cumulative Bar passage rates.  But an 80% standard will be harder to meet than the current 75% standard.