Texas Southern University and ABA Standard 316(a)(2)

With the announcement today of the statistics on the July Texas Bar Exam, the first-taker Bar passage rate of Thurgood Marshall School of Law of Texas Southern University has hit an important benchmark in meeting the minimum Bar passage rate requirements of ABA Standard 316.

Though original ABA Interpretation 301-6 has been under heavy siege in the Standards Review Committee, the substance of Standard 316 remains unchanged. Standard 316 offers two ways to meet the Standard. The first is 316(a)(1), which uses ultimate Bar passage rates of recent graduating classes--the cumulative passage rate, after multiple attempts, of each calendar year's cohort of graduates.

The second way to meet the Standard is 316 (a)(2). That is based on the overall first-taker Bar passage rate for each of the last five calendar years. A law school's first-taker Bar passage rate can be no more than more than 15 percentage  points lower that the passage rate in the relevant state(s) for first-takers from all ABA schools.

Standard 316(a)(2) requires a law school to meet the standard for three out of the last five calendar years. Since the beginning of public availability of law school  ABA "difference scores", calendar year 2007, T.S.U. has met the first-taker difference score in only three out of eight calendar years, 2010, 2013, and 2014.

Texas Bar Exams Difference between ABA and TSU First-Taker Bar Passage Rates Calendar Years 2007 through 2014
Calendar Year	Difference Score
2007	-20.97%
2008	-24.90%
2009	-17.58%
2010	-10.02%
2011	-17.78%
2012	-19.56%
2013	-0.52%
2014	-13.41%

The sequence of 2010, 2011, 2012, 2013 and 2014 is the first 5-year sequence in which TSU has met 316(a)(2).

But TSU will need to meet the minus 15% standard again in 2015 to meet 316(a)(2). Otherwise, it will have to fall back on the 316(a)(1) ultimate Bar passage rate test. But then, that has been the branch of Standard 316 on which TSU has relied on in the past.

posted by Gary Rosin

Comments

[Chucky]

What happens if they do not meet it? Are they immediately deaccredited, or do they go on probation and get a couple of more shots to bring it up?

[Jojo]

My goodness,

The ABA is such a toothless tiger beholden to the law schools. There should be minimum bar passage requirements. Period. Set for each year. Miss them for any 3 years out of 5, and you lose accreditation. Period.

This is getting out of hand.

[Gary Rosin]

Sorry, I thought I had posted a response to Chucky: A school that does not meet the Standard gets put on probation, generally for two years, unless the period is extended for good cause. See 316(c). After that, it's on to sanctions, including loss of accreditation.

Jojo: Most schools have been able to meet the first-time branch, and those that don't generally meet the ultimate branch. That was part of the move to tighten the Standard.

[Steven Freedman]

Gary,

Does this analysis account for the February bar results?

[Gary Rosin]

Steven:

Yes, all years are calendar-year combined results. For 2013, and 2014, I aggregated February and July first-takers, and passers, and then calculated the relevant percentages, and differences, for each calendar year. For 2007 through 2012, I took what appeared in the ABA Official Guides, or the Standard 509 reports, which are supposed to be calendar year results--February and July, combined.

[anon]

Reading the standards, and the consequences for failing to meet those standards, I believe it would be reasonable to conclude that no law school, EVER, will fall out of compliance to the point of any action against it by the ABA.

The list of factors to consider during the two year period following falling out of compliance make clear that no law school will ever be subject to any meaningful enforcement of any bar passage requirement.

Once again, the law academy shows itself to be essentially phony to the core. That is the key issue in so many respects.

[Brian Tamanaha]

Another inexplicably lax aspect of the ABA standard is that the bar pass rate of the school being evaluated is factored into the overall bar passage rate. A low scoring school benefits because its own low score brings down the overall rate, making it easier to meet the "no more than 15% lower" standard.

[confused by your post]

The reason the ABA standards are so lax is in large part due to the Standards Review Committee being packed with representatives of law schools. Specifically of the type of law schools that have a LOT to lose if the Committee tightened the standards.

The ABA's website lists the roster of the Standards Review Committee. There are 12 members. 6 of the members are currently employed (as professors, presidents, deans, etc.) at the following law schools:

Cleveland State University
Western New England University
Southwestern Law School
Santa Clara University
Catholic University
University of Baltimore

It is akin to regulatory capture where a government agency charged with oversight of an industry is run by representatives or former representatives of the industry's worst actors for the benefit of those actors.

[anon]

What can be done to repair the ABA?

It is not well respected, not well run and entirely ineffective in one of its primary goals: maintaining "ABA standards" for accreditation of law schools, upon which so much turns, including federal student loan money and the futures of many young people.

[Just saying...]

confused by your post: it goes beyond who serves on the Committee to who serves on site teams, as well. Same make-up as the committee in terms of members being from second and below tier schools.

The "big" ABA has to step in. Doesn't seem like it cares, however.

[anon]

Isn't it sad that we must assume that representatives from lower ranked schools will necessarily advocate for lax standards to excuse the abysmal performance of their home institutions?

Isn't that the definition of corruption?

What is so striking is that so many in law academy who post in the FL appear to simply assume without question that their own self interest does not color their judgments in all respects.

[Just saying...]

I do not think that they believe the standard to be lax. I think in their minds, the standards are appropriate. I doubt that the deans and profs on the various committees (at least until recently) ever thought their jobs were in danger and therefore proposed lax standards to keep their schools afloat.

What I find interesting is the lack of interest in site team membership,standards committee membership among those at the most highly ranked schools.

Anyone have any ideas on why that is the case?

[anon]

Because they don't really care about the profession, the law school academy or anything else that does not affect them directly.

In other words, as some law prof put it the other day here in the FL, they are "selfless."

[Barry]

Because the elite schools don't care about the floor; they're setting the ceiling. By and large HYS grads and professors don't compete with the bottom feeders (meaning the bottom 90%, likely).

[Anon]

Law school critics remain in shock that law schools have not closed in large numbers, if at all. Their ignorance of economics continues unabated. Since law schools do not accumulate debt the way that free standing businesses do (TJSL is the exception) widespread closures are unlikely.

Most ABA schools are constituents of much larger entities called "universities," Law schools have generated huge cash surpluses for these institutions for decades. While many law schools may now be accumulating operating deficits their parent institutions will be very cautious about shutting down what can in all likelihood once again generate surpluses. In the meantime most of these schools have engaged in cost cutting and reorganizations that make them leaner and more efficient.

Some decry lower admission standards but in fact those have fallen in the past during other periods when economic recovery was taking hold (like the late 90s). The irony is only that weaker students will likely have much stronger opportunities in a few years.

[Observer]

"Most ABA schools are constituents of much larger entities called "universities,"

You might want to review what happened to university library schools in the late '80's - early '90's.

[Orin Kerr]

Just saying says: "What I find interesting is the lack of interest in site team membership [&] standards committee membership among those at the most highly ranked schools. Anyone have any ideas on why that is the case?"

I think there are a lot of reasons, probably including the following: 1) the increasing focus on theory and decreasing professional identification as you go up to the U.S. News ladder; 2) the tendency at top schools to experience accreditation as merely a make-work nuisance rather than an important substantive task; and 3) the low interest at all levels of the academy in such work, such that those with better things to do often do them.

[Barry]

Anon: "Law school critics remain in shock that law schools have not closed in large numbers, if at all. Their ignorance of economics continues unabated."

Wrong. Law school critics are quite aware of these 'universities'; what they expect is to see the free-standing schools close first. Later, there will be some closures at low-ranking universities, the ones which are really jumped-up colleges, and which have small endowments and budgets. Those organizations will have limited resources to support a money-losing law school.

Some of the free-standing ones will close soon, I believe, simply because their cash flow is strongly negative, their endowments range from nothing to not much, and their assets are small (some buildings which might or might not have substantial resale value.

I think what the critics got wrong is the timeline; I for one now expect things to happen by 2020, not this year or next year.

This is a common mistake, one which I call the 'war' mistake: in peacetime, one underestimates just what people will endure in war.

For (free-standing) law schools, their faculty and administration are backed up against the wall here. Their job prospects are extemely bleak:

1) Law school hiring is way, way down, and faculty from a fourth-tier bottom-feeding law school will stand well down the list from brand-new VAP's with shiny new Ph.D.'s from top schools and currently popular research.

2) Law school administrators are pressed, and don't need to hire any ex-deans/assistant deans from a failed school. They undoubtedly have their own list of spouses and relatives to hire good candidates for administrative jobs, if any become open.

3) Law firms are shedding partners, and need to hire very, very few new ones, especially since experienced niche experts are available to hire on job-by-job basis. Most law professors have either next practiced law, or practiced for one or two years (i.e., not sh*t). They haven't practiced at all in the past 10 or twenty years, and have zero current clients or work product to show. Their 'research' consists mostly of papers to be 'peer' reviewed by 3L's[1].

4) Their graduates are not desired by the legal market, because (a) the market is glutted and (b) these are the worst of the lot. That's not going to endear their professors to the hiring firms.

5) JD Advantage is, of course, sh*t. Nobody is going to want to hire these guys for white-collar jobs, since their training and decades of experience are not what is needed.

The end result is that these faculty and administrators have *nothing* to fall back upon. They have to keep those schools going literally until the sheriff's deputies come to enforce the foreclosure and eviction papers. They will write checks until the bank refuses to honor them, and probably until the checkbooks are seized.

In many cases, there will be three or four regional bottom-feeder schools, which pull from the same population. If one of them fails, then the others have a chance at splitting up that school's future students. Therefore, from the viewpoint of the people running these schools, the best choice is to continue on until 'death'. It's a game of survival, and most people don't just curl up and die.

[1] There are, of course, exceptions, but they'll tend not to be found in bottom-feeder schools.

[Anon]

Well, let's put this to rest then until 2020....Good lord, if that is your view then what is the point? Anything can happen between now and then, and likely will.

In any case when you perpetuate the myth that it is law faculty who are keeping things going because they have nothing to fall back on you forget (or willfully ignore or are too inexperienced to understand) that trustees own the universities and therefore the law schools so it is up to them whether or not to keep the doors open.

[Barry]

"Well, let's put this to rest then until 2020....Good lord, if that is your view then what is the point? Anything can happen between now and then, and likely will."

Because a lot of people got f*cked?

Do the words 'law school grads' mean anything to you? Please read *something* written by the critics of the system, because nothing you've written shows any sign that you have.

"In any case when you perpetuate the myth that it is law faculty who are keeping things going because they have nothing to fall back on you forget (or willfully ignore or are too inexperienced to understand) that trustees own the universities and therefore the law schools so it is up to them whether or not to keep the doors open."

Read my comment, anon.